Texas Summer2000

Business Today Ron Lehman

Commissioner Representing Employers Texas Workforce Commission

A Pain in the Back Employers Wary of OSHArsquos Proposed Ergonomic Standards

Employers across the nation are waiting with trepidashytion to see whether proposed ergonomic regulations published by the Occupational Safety and Health Adshyministration (OSHA) will become final in the next few months The regulations are intended to reduce the number of musculoskeletal disorders (MSDs) occurring in the workplace Common examples of MSDs include carpal tunnel syndrome tendinitis herniated spinal discs and lower back pain OSHA estimates that the regulations will prevent 300000 injuries each year but at an annual cost of $42 billion to American employers Business organizations gauge the cost to be much higher with some estimates coming in as high as $100 billion Due to the broad scope of the coverage the regulations will affect almost every Texas employer regardless of size with the exception of those employers in the conshystruction maritime and agricultural industries

The regulations will initially apply to all manufacturing and manual handling jobs and will expand to cover any job type at a company in which a covered MSD occurs Manufacturing jobs include those jobs in which employshyees perform the physical work activities of producing a product and in which these activities make up a signifishycant amount of the worktime This includes such positions as assembly line workers piecework assemshyblers product inspectors meat packers machine operators garment workers commercial bakers and cabinet makers Manual handling jobs are jobs in which employees perform forceful liftinglowering pushing pulling or carrying Examples of such jobs include nursshying assistants package sorters deliverymen baggage handlers warehousemen garbage collectors and even grocery store baggers Finally coverage will expand to cover any job type in which the employer has even one worker with MSD symptoms related to the work Such

triggering symptoms can be as serious as a herniated disk requiring surgery or as innocuous as stiff or tinshygling muscles that linger for several days after an employee strains himself while performing a normal job duty

The Ergonomics Program What does an ergonomics program entail The proshyposed standard identifies six elements common to a complete ergonomics program They are

1 Management Leadership and Employee Participation 2 Hazard Information and Reporting 3 Job Hazard Analysis and Control 4 Training 5 MSD Management and 6 Program Evaluation

Employers with manufacturing and materials handling jobs must implement the first two elements for those positions even when no MSD has occurred When a

TBT Summer2000

continued A Pain in the Back covered MSD or persistent MSD symptom is reported in any position a covered employer must adopt all six elements for that job type unless it uses the Quick Fix Option discussed later

The first element ldquoManagement Leadership and Employee Participationrdquo requires employers to take several steps First it must assign the task of setting up and managing the ergonomics program to a person or group Next it must provide the necessary authority resources inforshymation and training to the person or group in charge It must examine the existing policies and practices to ensure that they encourage reporting and participation in the ergonomics program Employers must commushynicate periodically with employees about the program and their concerns about MSDs Finally employers must also allow employees to participate in the development implementation and evaluation of the program

The second element ldquoHazard Information and Reportingrdquo requires employers to establish a method for employshyees to report MSD signs and symptoms and to get prompt responses Employers must also evaluate emshyployee reports of MSD signs and symptoms to determine whether a covered MSD has occurred Finally employshyers must periodically provide information to employees explaining how to identify and report MSD signs and symptoms

The third element ldquoJob Hazard Analysis and Controlrdquo requires employers to analyze problem jobs to identify and eliminate ldquoergonomic risk factorsrdquo If the factors cannot be eliminated they must be materially reduced and the employer must monitor the position on a regushylar basis to determine whether further changes are necessary to prevent an MSD from occurring again

Under the fourth element ldquoTrainingrdquo employers must provide training to employees so they know about MSD hazards the ergonomics program and measures for eliminating or materially reducing the hazards Employshyers must provide training when a problem job is identified when new hazards are identified and at least once every 3 years

The fifth element ldquoMSD Managementrdquo requires employshyers to work with employees to prevent their MSDs from getting worse This can include providing employees with access to a health care professional and accommoshydating any work restrictions imposed by that professional for up to six months This is perhaps the most controshy

versial element of the proposed regulations Under the proposed system employers will have to ensure that emshyployees who are working under restricted duties receive wages sufficient to maintain 100 of the after-tax earnshyings the employee was making prior to the MSD Employers will also have to ensure that employees who are relieved of work completely receive wages sufficient to maintain 90 of after-tax earnings This is a roundshyabout way of saying employers will be responsible for making up the difference between an employeersquos previshyous wage and any workersrsquo compensation or disability payments made to the employee Furthermore the employer must maintain any benefits it provides such as health insurance seniority retirement and savings plans as if the employee did not have any work restrictions

The final element ldquoProgram Evaluationrdquo requires emshyployers to periodically and at least every three years evaluate the ergonomic program This will include conshysultations with employees in problem jobs and study of past results to ensure the program is materially reducshying MSD hazards

OSHA has proposed a ldquoQuick Fixrdquo mechanism

allowing employers under some circumstances to

correct an isolated MSD problem without having

to implement a complete ergonomics program

The ldquoQuick Fixrdquo Fortunately OSHA has proposed a ldquoQuick Fixrdquo mechashynism allowing employers under some circumstances to correct an isolated MSD problem without having to implement a complete ergonomics program In order to use a Quick Fix employers must promptly make the fifth element ldquoMSD Managementrdquo available to the inshyjured employee Employers must also consult with similarly situated employees about the physical activishyties and conditions of the job observe the employees performing the job to identify whether any risk factors are present and ask the employees for recommendashytions for eliminating the MSD hazard Employers must make Quick Fix changes to the job within 90 days and check the job within the next 30 days to determine whether the changes have eliminated the hazard Emshyployers must also keep a record of the Quick Fix changes

2

TBT Summer2000

continued A Pain in the Back and provide the hazard information to employees in the problem job type within 90 days

If the Quick Fix changes made by the employer do not eliminate the MSD hazards within 120 days of the original MSD or if another covered MSD is reported in that problem job within 36 months the employer must implement a complete ergonomics program

Record Keeping Under the proposed regulations employers that had 10 or more employees at any time during the precedshying calendar year must maintain records relating to MSD problems and resolutions for in most cases three years Some records such as job hazard analysis and ergonomic program evaluations can be replaced by updated records prior to the end of three years Other records such as individual employeersquos MSD records must be kept until three years after the individual has left the company While employers with fewer employees are not required to maintain these records prudent emshyployers will document their efforts any time they are required to comply with any part of these rules

Public Reaction At this point readers may be considering whether this is an opportune time to invest in ergonomics consulting companies The proposed rules and their elements are even more complex than they appear While the rules are only 10 pages long in the Federal Register OSHA also found it necessary to publish a 390 page ldquoPreamblerdquo to the rule explaining what those 10 pages meant

Employers and business organizations such as the United States Chamber of Commerce and the National Fedshyeration of Independent Business have testified strongly against these proposals at OSHArsquos public hearings Small businesses in particular are concerned that the rulersquos ldquoone size fits allrdquo approach places the same administrashytive and financial burdens on organizations with 10 employees that it places on those with 5000 employees Small businesses typically cannot afford to designate one person as the ldquohealth and safety officerrdquo in charge of understanding and implementing this complex set of rules

Commenters are also concerned that the agency is exshytending greater protections to workers than Congress has ever been willing to do For example the OSHA standard will cover many more employees than the Americans with Disabilities Act (ADA) covers The OSHA

standard could require an employer to provide very expensive assisting equipment to a worker with lower back pain even when the injury does not rise to the level of a disability and the ADA does not apply Furthermore the Americans with Disabilities Act does not require employers to provide accommodations that pose an undue hardship on the business yet the proshyposed rules would require businesses to provide wage replacement pay to affected employees even when the extra costs could bankrupt the business

Employers are also concerned that the system treats simishylarly situated employees differently For example consider employees ldquoTomrdquo and ldquoBobrdquo who work for a company that subscribes to workersrsquo compensation If Tom cannot work for six months because his job reshyquires him to repeatedly lift heavy items and he herniates a disk as a result he will not only receive workersrsquo comshypensation the employer will have to supplement his income to bring his after-tax earnings up to 90 of their previous level On the other hand if Bob accidentally breaks his leg on the job and cannot work for six months he will receive workersrsquo compensation only because a broken leg is not generally considered a ldquomusculoskelshyetal disorderrdquo under OSHArsquos rules As a result employees will come to recognize that some work-reshylated injuries are more valuable than others

Finally businesses are concerned that the proposed sysshytem will encourage employees to engage in fraud and abuse For example employees who injure themselves in non-work related activities will be tempted to say othshyerwise in order to gain the substantial financial benefits of the OSHA rules In addition once an employee is on light duty or completely relieved of duties there is little incentive for him to return to full status Finally the rules provide no sanctions or penalties for employees who fraudulently claim to have suffered from a work-related MSD

Conclusion OSHArsquos official comment period has closed and it apshypears that the agency intends to adopt the rule before the yearrsquos end However some industry leaders are working with members of Congress in continued opposhysition to the rule Worried employers may want to consult with their Congressmen to share their concerns

Mark Fenner Attorney at Law

3

TBT Summer2000

Observations from the Dais

Individual employers have brought numerous cases of unjust enrichment under the Texas Payday Law to my attention Agency statistics indicate that employers lost several hundred such cases during a recent one-year time frame

Under the current Texas Payday Law an employer must obtain written permission from an employee in most circumstances in order to make a payroll deduction This is true even if the employee has stolen from the employer been overpaid accidentally or failed to return funds or property issued by the emshyployer All too often employers fail to obtain signed written payroll deduction authorizations for such purposes from their new employees Employers learn too late that employees routinely refuse to sign such authorizations once they have been unjustly enriched While its important to make sure you obtain written authorizations from your employees itrsquos also important to question the necessity of a law that tolerates theft and irresponsibility by employees

The solution to this problem is simple An employer should be allowed to deduct from an employeersquos paycheck to recoup funds when that employee has stolen been accidentally overpaid received and not repaid an advance or failed to return employer-issued property If the employee feels the deduction was improper he or she could then file a wage claim with TWC and require the employer to provide proof that an unjust enrichment has occurred If the employer is able to produce such proof the deduction should be allowed to stand Our current system is backwards because it does not allow the employer to make a deduction unless they had the foresight to obtain advance written permission This means the employee obtains a windfall and the employer has little recourse short of potentially expensive civil litigation to recoup funds or property that have been wrongfully obtained

I recently spoke with an employer who experienced firsthand the frustration that the current Payday Law allows The employer had an office manager whose duties included signing payroll checks for the entire staff According to the employer this manager began issuing and signing extra payroll checks to herself The problem was not discovered during a routine audit performed by an outside CPA The employer finally discovered the error when providing the IRS with some requested payroll and tax information The employer then deducted funds from the managerrsquos last paycheck in an attempt to recover just a small portion of the unjust enrichment The manager filed a claim with TWC and was able to prevail because the employer did not have written authorization to make the deduction The emshyployer turned all the information over to his local District Attorney but to date no criminal indictments have been issued The employer consulted with his own attorney and discovered that the expense of pursing the matter with civil litigation would probably be more than the amount of funds that had been misappropriated The employer was understandably furious that a state agency would require him to pay the same employee that had allegedly been taking money from him for an extended period of time

I encourage all employers to obtain signed written payroll deduction authorizations from all of their new employees and to request existing employees to sign such forms before problems arise This may also be a very good time for the employer community to start uniting together behind this issue before the Texas Legislature reconvenes in January 2001 Your voices are much more likely to be heard if you

tive at the TWC I stand ready to assist you with this issue let your elected representatives know that the law needs to be changed As your designated representa-

Commissioner Representing Employers

4

TBT Summer2000

SUMMER HIRING OPPORTUNITIES AND CHILD LABOR LAWS The influx of high school and college students into the summer labor market should help to temporarily alleshyviate the labor shortages many employers have been experiencing For both employees and employers this opportunity will come with responsibility This is espeshycially true when dealing with younger workers High school age workers will need to learn the importance of coming to work on time of being respectful toward coshyworkers and supervisors and of putting in a dayrsquos work for a dayrsquos pay Employers will have to heed both state and federal child labor laws that regulate summer employment

Recent statistics indicate that every year 70 adolescents die in the United States from work-related injuries Another 200000 teens are injured on the job 70000 of these injuries are serious enough to require emershygency room treatment To make sure none of your young workers become part of these statistics please make note of the following laws

AGE OF EMPLOYMENT Generally speaking children under the age of 14 may not work There are a few exceptions to this general rule For example younger children employed in nonshyhazardous occupations who are directly supervised by their parent(s) may legally work for a business owned or operated by their parent(s) Children under the age of 14 may also work as newspaper delivery persons

HOURS OF EMPLOYMENT Children ages 16-17 are not restricted in the number of hours they may work per day or per week or in the time of day they may work Of course applicable overshytime must be paid to children who work in excess of 40 hours per week The working hours of children ages 14-15 are very restricted Federal law is even more limshyiting than state law when it comes to hours worked Under federal law while not attending school during the summer months children may not work more than 8 hours per day or more than 40 hours per week They may not work before 700 am or after 900 pm Even greater restrictions on working hours apply if you continue to employ the child once the fall school semesshyter begins

PROHIBITED DUTIES AND OCCUPATIONS If you plan to employ children this summer you are encouraged to contact the TWCrsquos Labor Law Departshyment or to visit TWCrsquos web site for an exhaustive list of prohibited occupations One occupation that should be highlighted because it tends to surprise most employers is driving With rare exceptions children under the age of 18 may not drive motor vehicles for their employers We recommend that all driving be done by adults

There are a wide variety of occupations that state and federal law prohibit children from entering While this article will not attempt to enumerate an exhaustive list some of the more common prohibitions include

A child who is 14 or 15 years of age may not be employed in a Manufacturing mining or processing b Occupations which involve the operation or tending

of hoisting apparatus or of any power-driven machinshyery other than office machines

c Public messenger service

5

TBT Summer2000

continued SUMMER HIRING d Occupations in connection with

1 Transportation of persons or property 2 Warehousing and storage 3 Communications and public utilities 4 Construction (including demolition and repair) 5 Occupations prohibited for a child who is 16 or 17

years of age

A child who is 16 or 17 years of age may generally not work with (Limited exemptions may be provided for apprentices and student-learners working under government specified standards) a Power-Driven Woodworking Machines b Power-Driven Metal Forming Punching and Shearshy

ing Machines c Power-Driven Meat Processing Machines d Power-Driven Paper Products Machines e Circular Saws Band Saws and Guillotine Shears f Roofing Operations g Excavation Operations

A child who is 16 or 17 years of age may not work with a Manufacturing or Storing Explosives b Coal Mining c Logging Sawmill Lath Mill Shingle Mill or

Cooperage Stock Mill d Radioactive Substances or Ionizing Radiations e Power-Driven Hoisting Apparatus

f Mining Other Than Coal g Bakery Machines h Manufacturing of Brick Tile and Kindred Products i Wrecking Demolition and Shipbreaking

PENALTIES TWC is authorized to inspect a place of business where there is good reason to believe a child is or has been employed within the last two years Offenses under the Texas Child Labor Act constitute Class A or B misshydemeanors depending on the provision violated Furthermore TWC may assess an administrative penshyalty against the employer not to exceed $10000 per violation The Attorney General of Texas may also seek injunctive relief in district court against an employer who repeatedly violates the Texas Child Labor Act

Play it safe this summer Stay in compliance with child labor laws and make sure you pass on the concept of safe working habits to your younger employees

Questions about the Texas and Federal child labor laws should be directed to the Texas Workforce Commissionrsquos Labor Law Department at 1-800-832-9243 The Labor Law Departmentrsquos page on the TWC web site is found at wwwtwcstatetxusuilablawlablawhtml

Aaron Haecker Attorney at Law

Welfare Reform An Update and Some Good News For more than four years Texasrsquo and the nationrsquos welfare system have been undergoing a dramatic transshyformation Helping Texans move from welfare to work has been a special challenge for the Welfare Reform Division here at the Texas Workforce Commission and the 28 local workforce development boards around the state

Herersquos some very good news the hard work paid off in fiscal year 1999 as we learned that Texas ranked ninth in the nation for placing welfare recipients into jobs during the previous fiscal year This high performance was recognized and rewarded through a $163 million bonus from the US Department of Health and Human Services The greatest numbers of those placed in jobs were in the rural and border areas of Texas which are particularly difficult to serve

Between 1995 and the end of fiscal year 1999 Texas

reached a major milestone 383641 Texans from 139318 families left the statersquos welfare rolls ndash this is a 53 reducshytion in the welfare rolls Based on the concept that individuals are ultimately responsible for their future and that of their families Texasrsquo welfare to work plan helps eliminate the barriers to employment that these Texans face To encourage employers to hire recipients there are tax credits subsidized wages and other financial inshycentives (If yoursquod like more information contact your local workforce development board)

Therersquos no question that we continue to face tough chalshylenges in transitioning more Texans to self-sufficiency However through a lot of hard work and the willingshyness of thousands of Texas employers to help a neighbor enter the workforce wersquove come a long way since September 1995

6

TBT Summer2000

continued A Pain in the Back covered MSD or persistent MSD symptom is reported in any position a covered employer must adopt all six elements for that job type unless it uses the Quick Fix Option discussed later

The first element ldquoManagement Leadership and Employee Participationrdquo requires employers to take several steps First it must assign the task of setting up and managing the ergonomics program to a person or group Next it must provide the necessary authority resources inforshymation and training to the person or group in charge It must examine the existing policies and practices to ensure that they encourage reporting and participation in the ergonomics program Employers must commushynicate periodically with employees about the program and their concerns about MSDs Finally employers must also allow employees to participate in the development implementation and evaluation of the program

The second element ldquoHazard Information and Reportingrdquo requires employers to establish a method for employshyees to report MSD signs and symptoms and to get prompt responses Employers must also evaluate emshyployee reports of MSD signs and symptoms to determine whether a covered MSD has occurred Finally employshyers must periodically provide information to employees explaining how to identify and report MSD signs and symptoms

The third element ldquoJob Hazard Analysis and Controlrdquo requires employers to analyze problem jobs to identify and eliminate ldquoergonomic risk factorsrdquo If the factors cannot be eliminated they must be materially reduced and the employer must monitor the position on a regushylar basis to determine whether further changes are necessary to prevent an MSD from occurring again

Under the fourth element ldquoTrainingrdquo employers must provide training to employees so they know about MSD hazards the ergonomics program and measures for eliminating or materially reducing the hazards Employshyers must provide training when a problem job is identified when new hazards are identified and at least once every 3 years

The fifth element ldquoMSD Managementrdquo requires employshyers to work with employees to prevent their MSDs from getting worse This can include providing employees with access to a health care professional and accommoshydating any work restrictions imposed by that professional for up to six months This is perhaps the most controshy

versial element of the proposed regulations Under the proposed system employers will have to ensure that emshyployees who are working under restricted duties receive wages sufficient to maintain 100 of the after-tax earnshyings the employee was making prior to the MSD Employers will also have to ensure that employees who are relieved of work completely receive wages sufficient to maintain 90 of after-tax earnings This is a roundshyabout way of saying employers will be responsible for making up the difference between an employeersquos previshyous wage and any workersrsquo compensation or disability payments made to the employee Furthermore the employer must maintain any benefits it provides such as health insurance seniority retirement and savings plans as if the employee did not have any work restrictions

The final element ldquoProgram Evaluationrdquo requires emshyployers to periodically and at least every three years evaluate the ergonomic program This will include conshysultations with employees in problem jobs and study of past results to ensure the program is materially reducshying MSD hazards

OSHA has proposed a ldquoQuick Fixrdquo mechanism

allowing employers under some circumstances to

correct an isolated MSD problem without having

to implement a complete ergonomics program

The ldquoQuick Fixrdquo Fortunately OSHA has proposed a ldquoQuick Fixrdquo mechashynism allowing employers under some circumstances to correct an isolated MSD problem without having to implement a complete ergonomics program In order to use a Quick Fix employers must promptly make the fifth element ldquoMSD Managementrdquo available to the inshyjured employee Employers must also consult with similarly situated employees about the physical activishyties and conditions of the job observe the employees performing the job to identify whether any risk factors are present and ask the employees for recommendashytions for eliminating the MSD hazard Employers must make Quick Fix changes to the job within 90 days and check the job within the next 30 days to determine whether the changes have eliminated the hazard Emshyployers must also keep a record of the Quick Fix changes

2

TBT Summer2000

continued A Pain in the Back and provide the hazard information to employees in the problem job type within 90 days

If the Quick Fix changes made by the employer do not eliminate the MSD hazards within 120 days of the original MSD or if another covered MSD is reported in that problem job within 36 months the employer must implement a complete ergonomics program

Record Keeping Under the proposed regulations employers that had 10 or more employees at any time during the precedshying calendar year must maintain records relating to MSD problems and resolutions for in most cases three years Some records such as job hazard analysis and ergonomic program evaluations can be replaced by updated records prior to the end of three years Other records such as individual employeersquos MSD records must be kept until three years after the individual has left the company While employers with fewer employees are not required to maintain these records prudent emshyployers will document their efforts any time they are required to comply with any part of these rules

Public Reaction At this point readers may be considering whether this is an opportune time to invest in ergonomics consulting companies The proposed rules and their elements are even more complex than they appear While the rules are only 10 pages long in the Federal Register OSHA also found it necessary to publish a 390 page ldquoPreamblerdquo to the rule explaining what those 10 pages meant

Employers and business organizations such as the United States Chamber of Commerce and the National Fedshyeration of Independent Business have testified strongly against these proposals at OSHArsquos public hearings Small businesses in particular are concerned that the rulersquos ldquoone size fits allrdquo approach places the same administrashytive and financial burdens on organizations with 10 employees that it places on those with 5000 employees Small businesses typically cannot afford to designate one person as the ldquohealth and safety officerrdquo in charge of understanding and implementing this complex set of rules

Commenters are also concerned that the agency is exshytending greater protections to workers than Congress has ever been willing to do For example the OSHA standard will cover many more employees than the Americans with Disabilities Act (ADA) covers The OSHA

standard could require an employer to provide very expensive assisting equipment to a worker with lower back pain even when the injury does not rise to the level of a disability and the ADA does not apply Furthermore the Americans with Disabilities Act does not require employers to provide accommodations that pose an undue hardship on the business yet the proshyposed rules would require businesses to provide wage replacement pay to affected employees even when the extra costs could bankrupt the business

Employers are also concerned that the system treats simishylarly situated employees differently For example consider employees ldquoTomrdquo and ldquoBobrdquo who work for a company that subscribes to workersrsquo compensation If Tom cannot work for six months because his job reshyquires him to repeatedly lift heavy items and he herniates a disk as a result he will not only receive workersrsquo comshypensation the employer will have to supplement his income to bring his after-tax earnings up to 90 of their previous level On the other hand if Bob accidentally breaks his leg on the job and cannot work for six months he will receive workersrsquo compensation only because a broken leg is not generally considered a ldquomusculoskelshyetal disorderrdquo under OSHArsquos rules As a result employees will come to recognize that some work-reshylated injuries are more valuable than others

Finally businesses are concerned that the proposed sysshytem will encourage employees to engage in fraud and abuse For example employees who injure themselves in non-work related activities will be tempted to say othshyerwise in order to gain the substantial financial benefits of the OSHA rules In addition once an employee is on light duty or completely relieved of duties there is little incentive for him to return to full status Finally the rules provide no sanctions or penalties for employees who fraudulently claim to have suffered from a work-related MSD

Conclusion OSHArsquos official comment period has closed and it apshypears that the agency intends to adopt the rule before the yearrsquos end However some industry leaders are working with members of Congress in continued opposhysition to the rule Worried employers may want to consult with their Congressmen to share their concerns

Mark Fenner Attorney at Law

3

TBT Summer2000

Observations from the Dais

Individual employers have brought numerous cases of unjust enrichment under the Texas Payday Law to my attention Agency statistics indicate that employers lost several hundred such cases during a recent one-year time frame

Under the current Texas Payday Law an employer must obtain written permission from an employee in most circumstances in order to make a payroll deduction This is true even if the employee has stolen from the employer been overpaid accidentally or failed to return funds or property issued by the emshyployer All too often employers fail to obtain signed written payroll deduction authorizations for such purposes from their new employees Employers learn too late that employees routinely refuse to sign such authorizations once they have been unjustly enriched While its important to make sure you obtain written authorizations from your employees itrsquos also important to question the necessity of a law that tolerates theft and irresponsibility by employees

The solution to this problem is simple An employer should be allowed to deduct from an employeersquos paycheck to recoup funds when that employee has stolen been accidentally overpaid received and not repaid an advance or failed to return employer-issued property If the employee feels the deduction was improper he or she could then file a wage claim with TWC and require the employer to provide proof that an unjust enrichment has occurred If the employer is able to produce such proof the deduction should be allowed to stand Our current system is backwards because it does not allow the employer to make a deduction unless they had the foresight to obtain advance written permission This means the employee obtains a windfall and the employer has little recourse short of potentially expensive civil litigation to recoup funds or property that have been wrongfully obtained

I recently spoke with an employer who experienced firsthand the frustration that the current Payday Law allows The employer had an office manager whose duties included signing payroll checks for the entire staff According to the employer this manager began issuing and signing extra payroll checks to herself The problem was not discovered during a routine audit performed by an outside CPA The employer finally discovered the error when providing the IRS with some requested payroll and tax information The employer then deducted funds from the managerrsquos last paycheck in an attempt to recover just a small portion of the unjust enrichment The manager filed a claim with TWC and was able to prevail because the employer did not have written authorization to make the deduction The emshyployer turned all the information over to his local District Attorney but to date no criminal indictments have been issued The employer consulted with his own attorney and discovered that the expense of pursing the matter with civil litigation would probably be more than the amount of funds that had been misappropriated The employer was understandably furious that a state agency would require him to pay the same employee that had allegedly been taking money from him for an extended period of time

I encourage all employers to obtain signed written payroll deduction authorizations from all of their new employees and to request existing employees to sign such forms before problems arise This may also be a very good time for the employer community to start uniting together behind this issue before the Texas Legislature reconvenes in January 2001 Your voices are much more likely to be heard if you

tive at the TWC I stand ready to assist you with this issue let your elected representatives know that the law needs to be changed As your designated representa-

Commissioner Representing Employers

4

TBT Summer2000

SUMMER HIRING OPPORTUNITIES AND CHILD LABOR LAWS The influx of high school and college students into the summer labor market should help to temporarily alleshyviate the labor shortages many employers have been experiencing For both employees and employers this opportunity will come with responsibility This is espeshycially true when dealing with younger workers High school age workers will need to learn the importance of coming to work on time of being respectful toward coshyworkers and supervisors and of putting in a dayrsquos work for a dayrsquos pay Employers will have to heed both state and federal child labor laws that regulate summer employment

Recent statistics indicate that every year 70 adolescents die in the United States from work-related injuries Another 200000 teens are injured on the job 70000 of these injuries are serious enough to require emershygency room treatment To make sure none of your young workers become part of these statistics please make note of the following laws

AGE OF EMPLOYMENT Generally speaking children under the age of 14 may not work There are a few exceptions to this general rule For example younger children employed in nonshyhazardous occupations who are directly supervised by their parent(s) may legally work for a business owned or operated by their parent(s) Children under the age of 14 may also work as newspaper delivery persons

HOURS OF EMPLOYMENT Children ages 16-17 are not restricted in the number of hours they may work per day or per week or in the time of day they may work Of course applicable overshytime must be paid to children who work in excess of 40 hours per week The working hours of children ages 14-15 are very restricted Federal law is even more limshyiting than state law when it comes to hours worked Under federal law while not attending school during the summer months children may not work more than 8 hours per day or more than 40 hours per week They may not work before 700 am or after 900 pm Even greater restrictions on working hours apply if you continue to employ the child once the fall school semesshyter begins

PROHIBITED DUTIES AND OCCUPATIONS If you plan to employ children this summer you are encouraged to contact the TWCrsquos Labor Law Departshyment or to visit TWCrsquos web site for an exhaustive list of prohibited occupations One occupation that should be highlighted because it tends to surprise most employers is driving With rare exceptions children under the age of 18 may not drive motor vehicles for their employers We recommend that all driving be done by adults

There are a wide variety of occupations that state and federal law prohibit children from entering While this article will not attempt to enumerate an exhaustive list some of the more common prohibitions include

A child who is 14 or 15 years of age may not be employed in a Manufacturing mining or processing b Occupations which involve the operation or tending

of hoisting apparatus or of any power-driven machinshyery other than office machines

c Public messenger service

5

TBT Summer2000

continued SUMMER HIRING d Occupations in connection with

1 Transportation of persons or property 2 Warehousing and storage 3 Communications and public utilities 4 Construction (including demolition and repair) 5 Occupations prohibited for a child who is 16 or 17

years of age

A child who is 16 or 17 years of age may generally not work with (Limited exemptions may be provided for apprentices and student-learners working under government specified standards) a Power-Driven Woodworking Machines b Power-Driven Metal Forming Punching and Shearshy

ing Machines c Power-Driven Meat Processing Machines d Power-Driven Paper Products Machines e Circular Saws Band Saws and Guillotine Shears f Roofing Operations g Excavation Operations

A child who is 16 or 17 years of age may not work with a Manufacturing or Storing Explosives b Coal Mining c Logging Sawmill Lath Mill Shingle Mill or

Cooperage Stock Mill d Radioactive Substances or Ionizing Radiations e Power-Driven Hoisting Apparatus

f Mining Other Than Coal g Bakery Machines h Manufacturing of Brick Tile and Kindred Products i Wrecking Demolition and Shipbreaking

PENALTIES TWC is authorized to inspect a place of business where there is good reason to believe a child is or has been employed within the last two years Offenses under the Texas Child Labor Act constitute Class A or B misshydemeanors depending on the provision violated Furthermore TWC may assess an administrative penshyalty against the employer not to exceed $10000 per violation The Attorney General of Texas may also seek injunctive relief in district court against an employer who repeatedly violates the Texas Child Labor Act

Play it safe this summer Stay in compliance with child labor laws and make sure you pass on the concept of safe working habits to your younger employees

Questions about the Texas and Federal child labor laws should be directed to the Texas Workforce Commissionrsquos Labor Law Department at 1-800-832-9243 The Labor Law Departmentrsquos page on the TWC web site is found at wwwtwcstatetxusuilablawlablawhtml

Aaron Haecker Attorney at Law

Welfare Reform An Update and Some Good News For more than four years Texasrsquo and the nationrsquos welfare system have been undergoing a dramatic transshyformation Helping Texans move from welfare to work has been a special challenge for the Welfare Reform Division here at the Texas Workforce Commission and the 28 local workforce development boards around the state

Herersquos some very good news the hard work paid off in fiscal year 1999 as we learned that Texas ranked ninth in the nation for placing welfare recipients into jobs during the previous fiscal year This high performance was recognized and rewarded through a $163 million bonus from the US Department of Health and Human Services The greatest numbers of those placed in jobs were in the rural and border areas of Texas which are particularly difficult to serve

Between 1995 and the end of fiscal year 1999 Texas

reached a major milestone 383641 Texans from 139318 families left the statersquos welfare rolls ndash this is a 53 reducshytion in the welfare rolls Based on the concept that individuals are ultimately responsible for their future and that of their families Texasrsquo welfare to work plan helps eliminate the barriers to employment that these Texans face To encourage employers to hire recipients there are tax credits subsidized wages and other financial inshycentives (If yoursquod like more information contact your local workforce development board)

Therersquos no question that we continue to face tough chalshylenges in transitioning more Texans to self-sufficiency However through a lot of hard work and the willingshyness of thousands of Texas employers to help a neighbor enter the workforce wersquove come a long way since September 1995

6

TBT Summer2000

continued A Pain in the Back and provide the hazard information to employees in the problem job type within 90 days

If the Quick Fix changes made by the employer do not eliminate the MSD hazards within 120 days of the original MSD or if another covered MSD is reported in that problem job within 36 months the employer must implement a complete ergonomics program

Record Keeping Under the proposed regulations employers that had 10 or more employees at any time during the precedshying calendar year must maintain records relating to MSD problems and resolutions for in most cases three years Some records such as job hazard analysis and ergonomic program evaluations can be replaced by updated records prior to the end of three years Other records such as individual employeersquos MSD records must be kept until three years after the individual has left the company While employers with fewer employees are not required to maintain these records prudent emshyployers will document their efforts any time they are required to comply with any part of these rules

Public Reaction At this point readers may be considering whether this is an opportune time to invest in ergonomics consulting companies The proposed rules and their elements are even more complex than they appear While the rules are only 10 pages long in the Federal Register OSHA also found it necessary to publish a 390 page ldquoPreamblerdquo to the rule explaining what those 10 pages meant

Employers and business organizations such as the United States Chamber of Commerce and the National Fedshyeration of Independent Business have testified strongly against these proposals at OSHArsquos public hearings Small businesses in particular are concerned that the rulersquos ldquoone size fits allrdquo approach places the same administrashytive and financial burdens on organizations with 10 employees that it places on those with 5000 employees Small businesses typically cannot afford to designate one person as the ldquohealth and safety officerrdquo in charge of understanding and implementing this complex set of rules

Commenters are also concerned that the agency is exshytending greater protections to workers than Congress has ever been willing to do For example the OSHA standard will cover many more employees than the Americans with Disabilities Act (ADA) covers The OSHA

standard could require an employer to provide very expensive assisting equipment to a worker with lower back pain even when the injury does not rise to the level of a disability and the ADA does not apply Furthermore the Americans with Disabilities Act does not require employers to provide accommodations that pose an undue hardship on the business yet the proshyposed rules would require businesses to provide wage replacement pay to affected employees even when the extra costs could bankrupt the business

Employers are also concerned that the system treats simishylarly situated employees differently For example consider employees ldquoTomrdquo and ldquoBobrdquo who work for a company that subscribes to workersrsquo compensation If Tom cannot work for six months because his job reshyquires him to repeatedly lift heavy items and he herniates a disk as a result he will not only receive workersrsquo comshypensation the employer will have to supplement his income to bring his after-tax earnings up to 90 of their previous level On the other hand if Bob accidentally breaks his leg on the job and cannot work for six months he will receive workersrsquo compensation only because a broken leg is not generally considered a ldquomusculoskelshyetal disorderrdquo under OSHArsquos rules As a result employees will come to recognize that some work-reshylated injuries are more valuable than others

Finally businesses are concerned that the proposed sysshytem will encourage employees to engage in fraud and abuse For example employees who injure themselves in non-work related activities will be tempted to say othshyerwise in order to gain the substantial financial benefits of the OSHA rules In addition once an employee is on light duty or completely relieved of duties there is little incentive for him to return to full status Finally the rules provide no sanctions or penalties for employees who fraudulently claim to have suffered from a work-related MSD

Conclusion OSHArsquos official comment period has closed and it apshypears that the agency intends to adopt the rule before the yearrsquos end However some industry leaders are working with members of Congress in continued opposhysition to the rule Worried employers may want to consult with their Congressmen to share their concerns

Mark Fenner Attorney at Law

3

TBT Summer2000

Observations from the Dais

Individual employers have brought numerous cases of unjust enrichment under the Texas Payday Law to my attention Agency statistics indicate that employers lost several hundred such cases during a recent one-year time frame

Under the current Texas Payday Law an employer must obtain written permission from an employee in most circumstances in order to make a payroll deduction This is true even if the employee has stolen from the employer been overpaid accidentally or failed to return funds or property issued by the emshyployer All too often employers fail to obtain signed written payroll deduction authorizations for such purposes from their new employees Employers learn too late that employees routinely refuse to sign such authorizations once they have been unjustly enriched While its important to make sure you obtain written authorizations from your employees itrsquos also important to question the necessity of a law that tolerates theft and irresponsibility by employees

The solution to this problem is simple An employer should be allowed to deduct from an employeersquos paycheck to recoup funds when that employee has stolen been accidentally overpaid received and not repaid an advance or failed to return employer-issued property If the employee feels the deduction was improper he or she could then file a wage claim with TWC and require the employer to provide proof that an unjust enrichment has occurred If the employer is able to produce such proof the deduction should be allowed to stand Our current system is backwards because it does not allow the employer to make a deduction unless they had the foresight to obtain advance written permission This means the employee obtains a windfall and the employer has little recourse short of potentially expensive civil litigation to recoup funds or property that have been wrongfully obtained

I recently spoke with an employer who experienced firsthand the frustration that the current Payday Law allows The employer had an office manager whose duties included signing payroll checks for the entire staff According to the employer this manager began issuing and signing extra payroll checks to herself The problem was not discovered during a routine audit performed by an outside CPA The employer finally discovered the error when providing the IRS with some requested payroll and tax information The employer then deducted funds from the managerrsquos last paycheck in an attempt to recover just a small portion of the unjust enrichment The manager filed a claim with TWC and was able to prevail because the employer did not have written authorization to make the deduction The emshyployer turned all the information over to his local District Attorney but to date no criminal indictments have been issued The employer consulted with his own attorney and discovered that the expense of pursing the matter with civil litigation would probably be more than the amount of funds that had been misappropriated The employer was understandably furious that a state agency would require him to pay the same employee that had allegedly been taking money from him for an extended period of time

I encourage all employers to obtain signed written payroll deduction authorizations from all of their new employees and to request existing employees to sign such forms before problems arise This may also be a very good time for the employer community to start uniting together behind this issue before the Texas Legislature reconvenes in January 2001 Your voices are much more likely to be heard if you

tive at the TWC I stand ready to assist you with this issue let your elected representatives know that the law needs to be changed As your designated representa-

Commissioner Representing Employers

4

TBT Summer2000

SUMMER HIRING OPPORTUNITIES AND CHILD LABOR LAWS The influx of high school and college students into the summer labor market should help to temporarily alleshyviate the labor shortages many employers have been experiencing For both employees and employers this opportunity will come with responsibility This is espeshycially true when dealing with younger workers High school age workers will need to learn the importance of coming to work on time of being respectful toward coshyworkers and supervisors and of putting in a dayrsquos work for a dayrsquos pay Employers will have to heed both state and federal child labor laws that regulate summer employment

Recent statistics indicate that every year 70 adolescents die in the United States from work-related injuries Another 200000 teens are injured on the job 70000 of these injuries are serious enough to require emershygency room treatment To make sure none of your young workers become part of these statistics please make note of the following laws

AGE OF EMPLOYMENT Generally speaking children under the age of 14 may not work There are a few exceptions to this general rule For example younger children employed in nonshyhazardous occupations who are directly supervised by their parent(s) may legally work for a business owned or operated by their parent(s) Children under the age of 14 may also work as newspaper delivery persons

HOURS OF EMPLOYMENT Children ages 16-17 are not restricted in the number of hours they may work per day or per week or in the time of day they may work Of course applicable overshytime must be paid to children who work in excess of 40 hours per week The working hours of children ages 14-15 are very restricted Federal law is even more limshyiting than state law when it comes to hours worked Under federal law while not attending school during the summer months children may not work more than 8 hours per day or more than 40 hours per week They may not work before 700 am or after 900 pm Even greater restrictions on working hours apply if you continue to employ the child once the fall school semesshyter begins

PROHIBITED DUTIES AND OCCUPATIONS If you plan to employ children this summer you are encouraged to contact the TWCrsquos Labor Law Departshyment or to visit TWCrsquos web site for an exhaustive list of prohibited occupations One occupation that should be highlighted because it tends to surprise most employers is driving With rare exceptions children under the age of 18 may not drive motor vehicles for their employers We recommend that all driving be done by adults

There are a wide variety of occupations that state and federal law prohibit children from entering While this article will not attempt to enumerate an exhaustive list some of the more common prohibitions include

A child who is 14 or 15 years of age may not be employed in a Manufacturing mining or processing b Occupations which involve the operation or tending

of hoisting apparatus or of any power-driven machinshyery other than office machines

c Public messenger service

5

TBT Summer2000

continued SUMMER HIRING d Occupations in connection with

1 Transportation of persons or property 2 Warehousing and storage 3 Communications and public utilities 4 Construction (including demolition and repair) 5 Occupations prohibited for a child who is 16 or 17

years of age

A child who is 16 or 17 years of age may generally not work with (Limited exemptions may be provided for apprentices and student-learners working under government specified standards) a Power-Driven Woodworking Machines b Power-Driven Metal Forming Punching and Shearshy

ing Machines c Power-Driven Meat Processing Machines d Power-Driven Paper Products Machines e Circular Saws Band Saws and Guillotine Shears f Roofing Operations g Excavation Operations

A child who is 16 or 17 years of age may not work with a Manufacturing or Storing Explosives b Coal Mining c Logging Sawmill Lath Mill Shingle Mill or

Cooperage Stock Mill d Radioactive Substances or Ionizing Radiations e Power-Driven Hoisting Apparatus

f Mining Other Than Coal g Bakery Machines h Manufacturing of Brick Tile and Kindred Products i Wrecking Demolition and Shipbreaking

PENALTIES TWC is authorized to inspect a place of business where there is good reason to believe a child is or has been employed within the last two years Offenses under the Texas Child Labor Act constitute Class A or B misshydemeanors depending on the provision violated Furthermore TWC may assess an administrative penshyalty against the employer not to exceed $10000 per violation The Attorney General of Texas may also seek injunctive relief in district court against an employer who repeatedly violates the Texas Child Labor Act

Play it safe this summer Stay in compliance with child labor laws and make sure you pass on the concept of safe working habits to your younger employees

Questions about the Texas and Federal child labor laws should be directed to the Texas Workforce Commissionrsquos Labor Law Department at 1-800-832-9243 The Labor Law Departmentrsquos page on the TWC web site is found at wwwtwcstatetxusuilablawlablawhtml

Aaron Haecker Attorney at Law

Welfare Reform An Update and Some Good News For more than four years Texasrsquo and the nationrsquos welfare system have been undergoing a dramatic transshyformation Helping Texans move from welfare to work has been a special challenge for the Welfare Reform Division here at the Texas Workforce Commission and the 28 local workforce development boards around the state

Herersquos some very good news the hard work paid off in fiscal year 1999 as we learned that Texas ranked ninth in the nation for placing welfare recipients into jobs during the previous fiscal year This high performance was recognized and rewarded through a $163 million bonus from the US Department of Health and Human Services The greatest numbers of those placed in jobs were in the rural and border areas of Texas which are particularly difficult to serve

Between 1995 and the end of fiscal year 1999 Texas

reached a major milestone 383641 Texans from 139318 families left the statersquos welfare rolls ndash this is a 53 reducshytion in the welfare rolls Based on the concept that individuals are ultimately responsible for their future and that of their families Texasrsquo welfare to work plan helps eliminate the barriers to employment that these Texans face To encourage employers to hire recipients there are tax credits subsidized wages and other financial inshycentives (If yoursquod like more information contact your local workforce development board)

Therersquos no question that we continue to face tough chalshylenges in transitioning more Texans to self-sufficiency However through a lot of hard work and the willingshyness of thousands of Texas employers to help a neighbor enter the workforce wersquove come a long way since September 1995

6

TBT Summer2000

Observations from the Dais

Individual employers have brought numerous cases of unjust enrichment under the Texas Payday Law to my attention Agency statistics indicate that employers lost several hundred such cases during a recent one-year time frame

Under the current Texas Payday Law an employer must obtain written permission from an employee in most circumstances in order to make a payroll deduction This is true even if the employee has stolen from the employer been overpaid accidentally or failed to return funds or property issued by the emshyployer All too often employers fail to obtain signed written payroll deduction authorizations for such purposes from their new employees Employers learn too late that employees routinely refuse to sign such authorizations once they have been unjustly enriched While its important to make sure you obtain written authorizations from your employees itrsquos also important to question the necessity of a law that tolerates theft and irresponsibility by employees

The solution to this problem is simple An employer should be allowed to deduct from an employeersquos paycheck to recoup funds when that employee has stolen been accidentally overpaid received and not repaid an advance or failed to return employer-issued property If the employee feels the deduction was improper he or she could then file a wage claim with TWC and require the employer to provide proof that an unjust enrichment has occurred If the employer is able to produce such proof the deduction should be allowed to stand Our current system is backwards because it does not allow the employer to make a deduction unless they had the foresight to obtain advance written permission This means the employee obtains a windfall and the employer has little recourse short of potentially expensive civil litigation to recoup funds or property that have been wrongfully obtained

I recently spoke with an employer who experienced firsthand the frustration that the current Payday Law allows The employer had an office manager whose duties included signing payroll checks for the entire staff According to the employer this manager began issuing and signing extra payroll checks to herself The problem was not discovered during a routine audit performed by an outside CPA The employer finally discovered the error when providing the IRS with some requested payroll and tax information The employer then deducted funds from the managerrsquos last paycheck in an attempt to recover just a small portion of the unjust enrichment The manager filed a claim with TWC and was able to prevail because the employer did not have written authorization to make the deduction The emshyployer turned all the information over to his local District Attorney but to date no criminal indictments have been issued The employer consulted with his own attorney and discovered that the expense of pursing the matter with civil litigation would probably be more than the amount of funds that had been misappropriated The employer was understandably furious that a state agency would require him to pay the same employee that had allegedly been taking money from him for an extended period of time

I encourage all employers to obtain signed written payroll deduction authorizations from all of their new employees and to request existing employees to sign such forms before problems arise This may also be a very good time for the employer community to start uniting together behind this issue before the Texas Legislature reconvenes in January 2001 Your voices are much more likely to be heard if you

tive at the TWC I stand ready to assist you with this issue let your elected representatives know that the law needs to be changed As your designated representa-

Commissioner Representing Employers

4

TBT Summer2000

SUMMER HIRING OPPORTUNITIES AND CHILD LABOR LAWS The influx of high school and college students into the summer labor market should help to temporarily alleshyviate the labor shortages many employers have been experiencing For both employees and employers this opportunity will come with responsibility This is espeshycially true when dealing with younger workers High school age workers will need to learn the importance of coming to work on time of being respectful toward coshyworkers and supervisors and of putting in a dayrsquos work for a dayrsquos pay Employers will have to heed both state and federal child labor laws that regulate summer employment

Recent statistics indicate that every year 70 adolescents die in the United States from work-related injuries Another 200000 teens are injured on the job 70000 of these injuries are serious enough to require emershygency room treatment To make sure none of your young workers become part of these statistics please make note of the following laws

AGE OF EMPLOYMENT Generally speaking children under the age of 14 may not work There are a few exceptions to this general rule For example younger children employed in nonshyhazardous occupations who are directly supervised by their parent(s) may legally work for a business owned or operated by their parent(s) Children under the age of 14 may also work as newspaper delivery persons

HOURS OF EMPLOYMENT Children ages 16-17 are not restricted in the number of hours they may work per day or per week or in the time of day they may work Of course applicable overshytime must be paid to children who work in excess of 40 hours per week The working hours of children ages 14-15 are very restricted Federal law is even more limshyiting than state law when it comes to hours worked Under federal law while not attending school during the summer months children may not work more than 8 hours per day or more than 40 hours per week They may not work before 700 am or after 900 pm Even greater restrictions on working hours apply if you continue to employ the child once the fall school semesshyter begins

PROHIBITED DUTIES AND OCCUPATIONS If you plan to employ children this summer you are encouraged to contact the TWCrsquos Labor Law Departshyment or to visit TWCrsquos web site for an exhaustive list of prohibited occupations One occupation that should be highlighted because it tends to surprise most employers is driving With rare exceptions children under the age of 18 may not drive motor vehicles for their employers We recommend that all driving be done by adults

There are a wide variety of occupations that state and federal law prohibit children from entering While this article will not attempt to enumerate an exhaustive list some of the more common prohibitions include

A child who is 14 or 15 years of age may not be employed in a Manufacturing mining or processing b Occupations which involve the operation or tending

of hoisting apparatus or of any power-driven machinshyery other than office machines

c Public messenger service

5

TBT Summer2000

continued SUMMER HIRING d Occupations in connection with

1 Transportation of persons or property 2 Warehousing and storage 3 Communications and public utilities 4 Construction (including demolition and repair) 5 Occupations prohibited for a child who is 16 or 17

years of age

A child who is 16 or 17 years of age may generally not work with (Limited exemptions may be provided for apprentices and student-learners working under government specified standards) a Power-Driven Woodworking Machines b Power-Driven Metal Forming Punching and Shearshy

ing Machines c Power-Driven Meat Processing Machines d Power-Driven Paper Products Machines e Circular Saws Band Saws and Guillotine Shears f Roofing Operations g Excavation Operations

A child who is 16 or 17 years of age may not work with a Manufacturing or Storing Explosives b Coal Mining c Logging Sawmill Lath Mill Shingle Mill or

Cooperage Stock Mill d Radioactive Substances or Ionizing Radiations e Power-Driven Hoisting Apparatus

f Mining Other Than Coal g Bakery Machines h Manufacturing of Brick Tile and Kindred Products i Wrecking Demolition and Shipbreaking

PENALTIES TWC is authorized to inspect a place of business where there is good reason to believe a child is or has been employed within the last two years Offenses under the Texas Child Labor Act constitute Class A or B misshydemeanors depending on the provision violated Furthermore TWC may assess an administrative penshyalty against the employer not to exceed $10000 per violation The Attorney General of Texas may also seek injunctive relief in district court against an employer who repeatedly violates the Texas Child Labor Act

Play it safe this summer Stay in compliance with child labor laws and make sure you pass on the concept of safe working habits to your younger employees

Questions about the Texas and Federal child labor laws should be directed to the Texas Workforce Commissionrsquos Labor Law Department at 1-800-832-9243 The Labor Law Departmentrsquos page on the TWC web site is found at wwwtwcstatetxusuilablawlablawhtml

Aaron Haecker Attorney at Law

Welfare Reform An Update and Some Good News For more than four years Texasrsquo and the nationrsquos welfare system have been undergoing a dramatic transshyformation Helping Texans move from welfare to work has been a special challenge for the Welfare Reform Division here at the Texas Workforce Commission and the 28 local workforce development boards around the state

Herersquos some very good news the hard work paid off in fiscal year 1999 as we learned that Texas ranked ninth in the nation for placing welfare recipients into jobs during the previous fiscal year This high performance was recognized and rewarded through a $163 million bonus from the US Department of Health and Human Services The greatest numbers of those placed in jobs were in the rural and border areas of Texas which are particularly difficult to serve

Between 1995 and the end of fiscal year 1999 Texas

reached a major milestone 383641 Texans from 139318 families left the statersquos welfare rolls ndash this is a 53 reducshytion in the welfare rolls Based on the concept that individuals are ultimately responsible for their future and that of their families Texasrsquo welfare to work plan helps eliminate the barriers to employment that these Texans face To encourage employers to hire recipients there are tax credits subsidized wages and other financial inshycentives (If yoursquod like more information contact your local workforce development board)

Therersquos no question that we continue to face tough chalshylenges in transitioning more Texans to self-sufficiency However through a lot of hard work and the willingshyness of thousands of Texas employers to help a neighbor enter the workforce wersquove come a long way since September 1995

6

TBT Summer2000

SUMMER HIRING OPPORTUNITIES AND CHILD LABOR LAWS The influx of high school and college students into the summer labor market should help to temporarily alleshyviate the labor shortages many employers have been experiencing For both employees and employers this opportunity will come with responsibility This is espeshycially true when dealing with younger workers High school age workers will need to learn the importance of coming to work on time of being respectful toward coshyworkers and supervisors and of putting in a dayrsquos work for a dayrsquos pay Employers will have to heed both state and federal child labor laws that regulate summer employment

Recent statistics indicate that every year 70 adolescents die in the United States from work-related injuries Another 200000 teens are injured on the job 70000 of these injuries are serious enough to require emershygency room treatment To make sure none of your young workers become part of these statistics please make note of the following laws

AGE OF EMPLOYMENT Generally speaking children under the age of 14 may not work There are a few exceptions to this general rule For example younger children employed in nonshyhazardous occupations who are directly supervised by their parent(s) may legally work for a business owned or operated by their parent(s) Children under the age of 14 may also work as newspaper delivery persons

HOURS OF EMPLOYMENT Children ages 16-17 are not restricted in the number of hours they may work per day or per week or in the time of day they may work Of course applicable overshytime must be paid to children who work in excess of 40 hours per week The working hours of children ages 14-15 are very restricted Federal law is even more limshyiting than state law when it comes to hours worked Under federal law while not attending school during the summer months children may not work more than 8 hours per day or more than 40 hours per week They may not work before 700 am or after 900 pm Even greater restrictions on working hours apply if you continue to employ the child once the fall school semesshyter begins

PROHIBITED DUTIES AND OCCUPATIONS If you plan to employ children this summer you are encouraged to contact the TWCrsquos Labor Law Departshyment or to visit TWCrsquos web site for an exhaustive list of prohibited occupations One occupation that should be highlighted because it tends to surprise most employers is driving With rare exceptions children under the age of 18 may not drive motor vehicles for their employers We recommend that all driving be done by adults

There are a wide variety of occupations that state and federal law prohibit children from entering While this article will not attempt to enumerate an exhaustive list some of the more common prohibitions include

A child who is 14 or 15 years of age may not be employed in a Manufacturing mining or processing b Occupations which involve the operation or tending

of hoisting apparatus or of any power-driven machinshyery other than office machines

c Public messenger service

5

TBT Summer2000

continued SUMMER HIRING d Occupations in connection with

1 Transportation of persons or property 2 Warehousing and storage 3 Communications and public utilities 4 Construction (including demolition and repair) 5 Occupations prohibited for a child who is 16 or 17

years of age

A child who is 16 or 17 years of age may generally not work with (Limited exemptions may be provided for apprentices and student-learners working under government specified standards) a Power-Driven Woodworking Machines b Power-Driven Metal Forming Punching and Shearshy

ing Machines c Power-Driven Meat Processing Machines d Power-Driven Paper Products Machines e Circular Saws Band Saws and Guillotine Shears f Roofing Operations g Excavation Operations

A child who is 16 or 17 years of age may not work with a Manufacturing or Storing Explosives b Coal Mining c Logging Sawmill Lath Mill Shingle Mill or

Cooperage Stock Mill d Radioactive Substances or Ionizing Radiations e Power-Driven Hoisting Apparatus

f Mining Other Than Coal g Bakery Machines h Manufacturing of Brick Tile and Kindred Products i Wrecking Demolition and Shipbreaking

PENALTIES TWC is authorized to inspect a place of business where there is good reason to believe a child is or has been employed within the last two years Offenses under the Texas Child Labor Act constitute Class A or B misshydemeanors depending on the provision violated Furthermore TWC may assess an administrative penshyalty against the employer not to exceed $10000 per violation The Attorney General of Texas may also seek injunctive relief in district court against an employer who repeatedly violates the Texas Child Labor Act

Play it safe this summer Stay in compliance with child labor laws and make sure you pass on the concept of safe working habits to your younger employees

Questions about the Texas and Federal child labor laws should be directed to the Texas Workforce Commissionrsquos Labor Law Department at 1-800-832-9243 The Labor Law Departmentrsquos page on the TWC web site is found at wwwtwcstatetxusuilablawlablawhtml

Aaron Haecker Attorney at Law

Welfare Reform An Update and Some Good News For more than four years Texasrsquo and the nationrsquos welfare system have been undergoing a dramatic transshyformation Helping Texans move from welfare to work has been a special challenge for the Welfare Reform Division here at the Texas Workforce Commission and the 28 local workforce development boards around the state

Herersquos some very good news the hard work paid off in fiscal year 1999 as we learned that Texas ranked ninth in the nation for placing welfare recipients into jobs during the previous fiscal year This high performance was recognized and rewarded through a $163 million bonus from the US Department of Health and Human Services The greatest numbers of those placed in jobs were in the rural and border areas of Texas which are particularly difficult to serve

Between 1995 and the end of fiscal year 1999 Texas

reached a major milestone 383641 Texans from 139318 families left the statersquos welfare rolls ndash this is a 53 reducshytion in the welfare rolls Based on the concept that individuals are ultimately responsible for their future and that of their families Texasrsquo welfare to work plan helps eliminate the barriers to employment that these Texans face To encourage employers to hire recipients there are tax credits subsidized wages and other financial inshycentives (If yoursquod like more information contact your local workforce development board)

Therersquos no question that we continue to face tough chalshylenges in transitioning more Texans to self-sufficiency However through a lot of hard work and the willingshyness of thousands of Texas employers to help a neighbor enter the workforce wersquove come a long way since September 1995

6

TBT Summer2000

continued SUMMER HIRING d Occupations in connection with

1 Transportation of persons or property 2 Warehousing and storage 3 Communications and public utilities 4 Construction (including demolition and repair) 5 Occupations prohibited for a child who is 16 or 17

years of age

A child who is 16 or 17 years of age may generally not work with (Limited exemptions may be provided for apprentices and student-learners working under government specified standards) a Power-Driven Woodworking Machines b Power-Driven Metal Forming Punching and Shearshy

ing Machines c Power-Driven Meat Processing Machines d Power-Driven Paper Products Machines e Circular Saws Band Saws and Guillotine Shears f Roofing Operations g Excavation Operations

A child who is 16 or 17 years of age may not work with a Manufacturing or Storing Explosives b Coal Mining c Logging Sawmill Lath Mill Shingle Mill or

Cooperage Stock Mill d Radioactive Substances or Ionizing Radiations e Power-Driven Hoisting Apparatus

f Mining Other Than Coal g Bakery Machines h Manufacturing of Brick Tile and Kindred Products i Wrecking Demolition and Shipbreaking

PENALTIES TWC is authorized to inspect a place of business where there is good reason to believe a child is or has been employed within the last two years Offenses under the Texas Child Labor Act constitute Class A or B misshydemeanors depending on the provision violated Furthermore TWC may assess an administrative penshyalty against the employer not to exceed $10000 per violation The Attorney General of Texas may also seek injunctive relief in district court against an employer who repeatedly violates the Texas Child Labor Act

Play it safe this summer Stay in compliance with child labor laws and make sure you pass on the concept of safe working habits to your younger employees

Questions about the Texas and Federal child labor laws should be directed to the Texas Workforce Commissionrsquos Labor Law Department at 1-800-832-9243 The Labor Law Departmentrsquos page on the TWC web site is found at wwwtwcstatetxusuilablawlablawhtml

Aaron Haecker Attorney at Law

Welfare Reform An Update and Some Good News For more than four years Texasrsquo and the nationrsquos welfare system have been undergoing a dramatic transshyformation Helping Texans move from welfare to work has been a special challenge for the Welfare Reform Division here at the Texas Workforce Commission and the 28 local workforce development boards around the state

Herersquos some very good news the hard work paid off in fiscal year 1999 as we learned that Texas ranked ninth in the nation for placing welfare recipients into jobs during the previous fiscal year This high performance was recognized and rewarded through a $163 million bonus from the US Department of Health and Human Services The greatest numbers of those placed in jobs were in the rural and border areas of Texas which are particularly difficult to serve

Between 1995 and the end of fiscal year 1999 Texas

reached a major milestone 383641 Texans from 139318 families left the statersquos welfare rolls ndash this is a 53 reducshytion in the welfare rolls Based on the concept that individuals are ultimately responsible for their future and that of their families Texasrsquo welfare to work plan helps eliminate the barriers to employment that these Texans face To encourage employers to hire recipients there are tax credits subsidized wages and other financial inshycentives (If yoursquod like more information contact your local workforce development board)

Therersquos no question that we continue to face tough chalshylenges in transitioning more Texans to self-sufficiency However through a lot of hard work and the willingshyness of thousands of Texas employers to help a neighbor enter the workforce wersquove come a long way since September 1995

6

TBT Summer2000

IDEAS FOR LEGISLATIVE CHANGE IN 2001 Employers frequently offer us suggestions on how to improve Texas employment laws We take those sugshygestions seriously and we regularly update you on ideas or actual pending legislation Since the next session of the Texas Legislature will start in January 2001 its time to let you know what many of your business colleagues are thinking about

UNEMPLOYMENT INSURANCE LAW

1 Sixty day probation periods for new employees Currently there is no minimum time an employee has to work for an employer before the employerrsquos account becomes potentially subject to charges for unemployment benefits This suggested change would protect employersrsquo unemployment insurance accounts from the charges for any employee who worked for the employer for 60 or fewer days by excluding this time period from the definition of ldquoemploymentrdquo

2 Recouping unemployment insurance wage payments Currently the Texas Workforce Commission (TWC) recoups overpayments made to claimants by offsetshyting these amounts against those individualsrsquo future claims for unemployment An idea has surfaced that would allow TWC to collect these amounts through the full range of customary collection procedures used for employer taxes Some collection techshyniques such as using private collection agencies for recent overpayments would also require a change in federal law

3 Use of unemployment Insurance Funds for Wage Subsidies Currently claimants may refuse an offer of othershywise suitable work when the proposed pay is deemed to be too low This change would encourage claimshyants to accept these positions by subsidizing the lower wage with unemployment insurance

4 Clarify ldquolast workrdquo Currently claimants must name the ldquolast workrdquo performed when filing an unemployment insurance claim This means that if an employer fires an employee for misconduct or if the employee volunshytarily quits for personal reasons the former emshyployee can go to work for one day for a sham emshyployer - washing windows for a neighbor or family member for example - and then be laid off for lack

of work This proposed change would clarify that ldquolast workrdquo must be work performed for an employer that has a valid tax account with the TWC

TEXAS PAYDAY LAW

5 Unjust Enrichment Cases Currently the Texas Payday Law prohibits even othshyerwise lawful deductions if they are not specifically authorized by the employee in writing unless the deduction is for payroll taxes or is ordered by a court This proposed change would allow employers to take deductions without the employeersquos signature in cases of unjust enrichment Examples of unjust enrichshyment would include theft embezzlement and accishydental payroll overpayments If the employee filed a wage claim in response to an employer making such a deduction the employer would bear the burden of establishing that the employee was unjustly enriched

6 Commission Review of Payday Law Cases Wage claims under the Texas Payday Law cannot be administratively appealed beyond the hearing officer level Currently a partyrsquos only other appeal option is to take their case to court A suggestion has been proposed that would allow a wage claimant or an employer to appeal their case to the three-member Texas Workforce Commission This appeal option is currently in place only for unemployment insurshyance claims

GENERAL EMPLOYMENT LAW

7 Workersrsquo Compensation Reform Section 451 of the Texas Labor Code prohibits emshyployers from retaliating against employees for filing workersrsquo compensation claims Unfortunately this allows employees to file Section 451 lawsuits against employers even when they have been off work on Workersrsquo Compensation for years This proposed change would create a rebuttable presumption that employers who terminate workersrsquo compensation claimants who have been off work for six or more consecutive months are not doing so for retaliatory reasons

Aaron Haecker Attorney at Law

7

TBT Summer2000

Your Technology Policies E-Mail the Internet Voice Mail Telephone and Computer Network Systems Used by Employees

A recent survey by Rutgers University reveals that more than two-thirds of American employees use a computer at work daily These workers spend an average of 35 of their workday using a computer and 23 of their working time on the Internet In a separate study conshyducted by NielsenNet Ratings it was found that Americans are spending twice as much time online at work than they do at home

And Americarsquos employers are using computers in soarshying numbers About 75 of all American employers now use intranet systems to provide human resource-related services to their workers Research conducted by Watson Wyatt Worldwide indicates that this is a dramatic inshycrease from 1998 when only half of the countryrsquos employers used intranet systems

Advances in detection software are also allowing emshyployers to flush out the Internet junkies in the workplace A survey released April 12 2000 by the American Management Association (the AMA) reveals that nearly three-fourths of major American companies

responding to the survey review and record their emshyployeesrsquo e-mail messages phone calls computer files and Internet connections By contrast the AMA survey taken in 1997 revealed that only 35 of employers were monishytoring their workersrsquo communications The AMA received 2133 responses from human resources proshyfessionals at AMA client and member companies for this yearrsquos survey (2000 AMA Survey Workplace Monitoring and Surveillance)

According to the survey the review and storage of e-mail messages has increased from 15 in 1997 to 38 this year Thirty-one percent of the responding employshyers indicated they review computer files an increase from 14 in 1997 Fifty-four percent of the businesses responding said they monitor their employeesrsquo Internet connections

Given this explosion of technology in the workplace it is becoming increasingly important to have a policy covshyering these types of communications to set reasonable standards of conduct and to limit your potential legal liability E-mail the Internet intranet systems and voice mail have all become efficient and in many cases inshyvaluable tools in the workplace However to date there are almost no reported cases from courts anywhere in the country which provide clear guidelines to explain the balance between an employerrsquos legitimate business interests in these types of employee communications and their employees expectation of privacy In the absence of such legal consensus your policy should be clear well publicized and straightforward to reduce or eliminate any employeersquos expectation of privacy Electronic monishytoring policies need to be clearly defined and provided to all employees through every available communicashytion channel

An Internet e-mail or voice mail invasion of privacy claim would probably be brought on the common law theory of ldquointrusion on seclusionrdquo An employee plaintiffrsquos success in such a lawsuit would depend on whether the employee had a reasonable expectation of privacy Such expectations are usually created by an emshyployer within the employeersquos workplace environment

To minimize your employees chances of successfully asserting an invasion of privacy claim you must adopt express clear e-mail voice mail and Internet policies

8

TBT Summer2000

informing your employees that they do not have a pershysonal privacy right in any matters received by created in sent over or stored in your system Whether or not you allow your employees to use company computers for personal business during their breaks lunch hours and before or after work hours is a decision only you can make

The real issue should be ldquoAre we getting our work done and is the quality of that work what it should berdquo Many employers have no objection to their employees using company resources so long as they get their required work done in a timely fashion and donrsquot abuse the privishylege Itrsquos probably unrealistic to expect that employees will never look at a weather report or check the score from last nightrsquos big game on the Internet And letrsquos face it you need your employees to be comfortable enough with their computers to work effectively Many times actually using the computer is the only way to obtain that proficiency However most employers do not want their employees playing endless games of Solishytaire or accessing pornographic adult sites during working hours

As in all areas of employee conduct an employer has the right to establish reasonable standards of behavior and stick to them every time with everybody Your policy should inform all employees that information on company-provided computers and e-mail is to be used for business purposes during working hours that comshyputer information and e-mail is the companyrsquos property and that you may be monitoring such communications from time to time for business purposes

This policy should be communicated to your employshyees not only through your employee policy handbook but also in e-mail voice mail and Internet instruction guides and on-screen notices Employees should also be required to sign and acknowledge your policy of teleshyphone electronic and computer network access

As in any other area developing communicating and enforcing a consistent policy in an evenhanded manner should be a priority Without a policy you may have a very hard time disciplining employees who misuse a voice mail e-mail or Internet system Even if you allow some level of personal use of these systems you will alshymost certainly want to prohibit inappropriate conduct such as sending racist or sexist jokes to co-workers or running the Super Bowl pool over your system

More than half of the employers surveyed in this yearrsquos AMA study indicated they have disciplined employees for their personal use or misuse of telephones Internet access or e-mail About 25 of the companies have fired workers for these violations For example Xerox Corshyporation based in Stamford Connecticut fired 40 workers in the fall of 1999 for what it deemed to be gross misuse of company Internet resources According to Xerox company spokeswoman Christa Carone the fired employees were spending ldquothe majority of their days on inappropriate sitesrdquo

Many employers are also using ldquoblockingrdquo software to prevent telephone connections to inappropriate or unshyauthorized phone numbers In an effort to control employee misuse of company telecommunications equipshyment 29 of employers block Internet connections to inappropriate or unauthorized web sites

Accessing employee voice mail can be analogized to teleshyphone monitoring cases It has long been established by courts around the country that employers may not listen to their employees personal phone calls any longer than absolutely necessary to decide if a conversation is pershysonal in nature Likewise the safest advice for accessing messages left on an employeersquos voice mail sysshytem is to fast forward any voice mail messages that are of a personal nature

A Sample E-Mail Voice Mail Internet Policy

XYZ Corporation respects the privacy of its employees However an XYZ employee may not expect such prishyvacy rights to extend to the use of XYZ-owned systems property equipment or supplies or to work-related conshyduct This policy is intended to notify all XYZ employees that no reasonable expectation of privacy exists in conshynection with your use of XYZrsquos systems property equipment or supplies XYZ employees are prohibited from withholding information maintained within comshypany supplied containers including but not limited to computer files computer databases desks lockers and cabinets The following rules also apply to the use of XYZ property

1 XYZrsquos Right to Access information While XYZ employees have individual passwords to e-mail

9

TBT Summer2000

continued Your Technology Policies voice mail and computer network systems these sysshytems are at all times accessible to and by XYZ and may be subject to unannounced periodic inspecshytions by XYZ for business purposes This policy apshyplies to all telephone electronic and computer net work systems which are accessed on or from XYZrsquos premises used in a manner which identifies the employee with XYZ accessed using XYZ computer equipment andor via XYZ-paid access methods XYZ employees may not use secret passwords and all system passwords must be available to XYZ at all times XYZ maintains back-up copies of e-mail and voice mail and these records as well as the usage records of XYZ computer network systems may be reviewed by the company for legal business or other reasons

2 Use is Restricted to XYZ business XYZrsquos employshyees are expected to use company e-mail voice mail and computer network systems for XYZ business (during working hours) not for personal reasons Personal reasons include but are not limited to nonshyjob-related communications research or solicitashytions or soliciting for political or religious causes outside organizations or other commercial ventures

3 Prohibited Content XYZ employees are prohibited from using XYZrsquos telephone electronic or computer network systems in any manner that may be offenshysive or disruptive to others This includes but is not limited to the transmission of racial or ethnic slurs gender-specific comments sexually explicit images or messages any remarks that would offend others on the basis of their age political or religious beshyliefs disability national origin or sexual orientation or any messages that may be interpreted to disparshyage or harass others No telephone electronic or computer network communications may be sent which represent the sender as from another comshypany or as someone else or which try to hide the senderrsquos identity Inappropriate or excessive pershysonal use of XYZrsquos property or telephone electronic or computer network systems will result in disciplinshyary action up to and including termination

Because it is so important to reduce or negate an employeersquos expectation of privacy it is very wise to obshytain the express written consent of each employee allowing you to review and monitor messages files and the usage of these systems

B Sample E-Mail Voice Mail Telephone and Computer Network Systems Use Acknowledgment Form

I acknowledge that all telephone and electronic comshymunications systems and all information received from transmitted by or stored in these systems are and will remain XYZrsquos property I also acknowledge that these systems are to be used only for job-related purposes (durshying business hours) not for personal purposes I understand that I have no personal privacy right or any expectation of privacy in connection with my use of this equipment or with the receipt transmission or storage of information in XYZrsquos equipment

I agree not to access a file use a code or retrieve any stored communication unless I am authorized to do so Further I agree to disclose messages or information from telephone or electronic communications systems only to authorized individuals I acknowledge and conshysent to XYZrsquos monitoring my use of this equipment at its discretion at any time XYZrsquos monitoring may inshyclude printing out and reading all telephone and e-mail leaving entering or stored in these systems I further agree to abide by XYZrsquos policy prohibiting the use of telephone and electronic communication systems to transmit offensive lewd racist or sexist messages

I understand that violation of this policy can lead to disshyciplinary action up termination

to and including immediate

_____________________ Employee Signature Witness

____________________ Date

Reneacutee M Miller Attorney at Law

These sample statements policies and forms are merely guidelines Every employerrsquos policies must be tailored by individual circumstances Before implementing any policies management should consult with legal counsel to ensure compliance with appropriate federal and state

statutes and case law to reduce the possibility of arbitration or litigation

10

TBT Summer2000

BUSINESS BRIEFS Summer 2000 Congress Repeals Social Security Earnings Limit

In a rare display of bipartisan agreement Congress recently unanimously passed legislation eliminating the Soshycial Security earnings penalty for workers between the ages of 65 and 69 President Clinton signed this measure into law on April 7 2000 but the change is retroactive to Janushyary 1 Until now these individualsrsquo Social Security benefits were cut by $1 for every $3 they earned in excess of $17000 per year

The new law does not affect younger retirees (aged 62 to 65) who will still forfeit $1 for every $2 they earn over $10080 or Americans over the age of 70 who have alshyways been allowed to work as much as they desire without losing any benefits

This new law with its unanimous and bipartisan support may be an indication of changing attitudes toward older people and work For example in 1964 43 of all Amerishycan males between the ages of 65 and 69 worked However by 1985 only 25 were working a decline of about 40 in just two decades During this same brief period the employment rate for males in the next younger age group ndash 60 to 64 ndash dropped by almost one third from 79 to 55

These trends stopped in the mid-1980rsquos The number of men in their 60rsquos who were still in the workforce began stabilizing and then increasing the same was true for older women The era of earlier and earlier retirement seems to be over

There are a number of reasons for this change The conshycept of mandatory retirement has been eliminated for the vast majority of industries and professions and the nation is enjoying record-breaking low unemployment increasshying the demand for workers of all types and skills And many Americans are living longer and enjoying better health than ever before A number of surveys suggest that most baby boomers (who will be retiring during the next several decades) hope to continue working past the age of 65 even if only part time

Get Your New Employees Up to Speed Quickly Some on the job training tips

Every employer dreams of hiring new workers who are already experienced in the type of work theyrsquoll be doing However especially in todayrsquos tight labor market that simshyply isnrsquot always possible Here are a few basics of on the job

training to help get your new workers up and running as quickly as possible

First never assume that a new employee is familiar with the procedures or equipment of the job theyrsquove been hired for regardless of what their resume says theyrsquove done for another employer in the past Procedures and equipment vary wildly from company to company sometimes even from branch to branch of the same employer Many types of equipment require safety training without which emshyployees are at risk and the company puts itself in danger of violating OSHA standards and regulations New emshyployees should always be thoroughly warned and trained about hazardous equipment

Second before beginning a new employeersquos on the job training meet with supervisors and other key employees to decide exactly what the new employee is going to be doing Write these functions down and go over them careshyfully in clear straightforward language with the employee on their first day with the company New employees need to know exactly what is going to be expected of them not only does it help to focus them it also gives them tangible goals There is no federal or state law requiring a private sector employer to translate job descriptions policies or instructions into a language other than English However if you realistically expect to have enforceable policies or job descriptions it is extremely helpful to make sure that your expectations are explained to the new worker in a language that they understand and comprehend

Third if at all possible assign an experienced employee to work with your new hire during their training period This veteran employee should explain every facet of the job and continue to monitor the individualrsquos command of the work until it is completely satisfactory Many employers feel that the best case scenario is to have the employee who is leaving the position be in charge of training the new worker (unless the employee was fired or has quit with negative feelings toward the company) If an employee is leaving on good terms and quitting with two to three weeks notice often a smooth transition can take place by having that employee work with the new hire for as much of that notice period as possible

Finally if you are hiring large number of employees at the same time you may with to consider a more formal orienshytation and training program

Reneacutee M Miller Attorney at Law

11

TBT Summer2000

LEGAL BRIEFS Summer 2000 A Unanimous Texas Supreme Court Refuses to Create a New Exception to the At-Will Employment Doctrine

Herersquos some good news for Texas employers and the at-will employment doctrine In a 9-0 opinion the Texas Supreme Court recently refused to impose a legal oblishygation on employers to act with ldquogood faith and fair dealingrdquo in their relations with employees The court held that such a duty cannot be forced on employers because there is no ldquospecial relationshiprdquo between an employer and its workers City of Midland v OrsquoBryant No 97-0954 Texas Supreme Court (April 6 2000)

While this was the first time that the court specifically addressed this issue the ruling conforms with the statersquos at-will employment doctrine Basically the at-will docshytrine means that the employment relationship is indefinite in duration employees are free to quit and employers are free to fire at any time ldquofor any reason or no reason at allrdquo as the court said The high court ruled that imposing a duty of good faith and fair dealshying on the City of Midland would permit the plaintiffs to make an ldquoend runrdquo around existing laws regulating the employment relationship The five plaintiffs had already filed and voluntarily dismissed two lawsuits brought under the Americans with Disabilities Act

Judge Priscilla R Owen reversing the state appeals courtsrsquo decision wrote ldquoa court created duty of good faith and fair dealing would completely alter the nature of the at-will employment relationship which generally can be terminated by either party for any reason or no reason at all and we accordingly decline to change the at-will nature of employment in Texasrdquo

The court stated that its ruling applies to both private and government employers ldquoinasmuch as both types of employers are subject to applicable laws regulations and contractual agreementsrdquo Additionally the court said that the holding applies whether or not the employment relationship is governed by an express agreement The court reasoned that a common-law duty of good faith and fair dealing is unnecessary when there are express contractual limits on the partiesrsquo rights

The Facts The case was brought by five police officers four of whom were disabled who were employees of the City of Midland The City informed the officers that their duties were going to be reclassified as civilian positions

and they were given three choices 1 They could stay in their jobs and be reclassified as civilians 2 They could transfer to other positions in the police department and keep their status as police officers or 3 They could transshyfer to other civilian job positions However if the officers chose to accept the civilian job positions both their benshyefits and pay would be cut The City of Midland asserted that it was facing budgetary constraints and the job reshyclassifications were simply a cost-cutting measure

The five officers sued the City of Midland alleging that it was unlawful to require them to demonstrate greater physical capabilities than they had in the past For some reason the officers voluntarily dismissed this case The City then reclassified the five officers in civilian jobs In response the officers filed a second lawsuit this time asserting discrimination retaliation and that Midland had breached its ldquoduty of good faith and fair dealingrdquo That claim was dismissed by a trial judge However the question of whether the City had a duty of good faith and fair dealing to its employees eventually made its way to the statersquos highest court

Legal Analysis The Texas Supreme Court began its unanimous opinshyion by pointing out that not every contractual relationship creates a duty of good faith and fair dealshying In an earlier lawsuit involving insurance carriers

12

TBTcontinued LEGAL BRIEFS Summer 2000 Summer2000

the court held that such a duty exists only if there is a ldquospecial relationshiprdquo between the parties In that case the court held that insurance carriers owe a duty of good faith and fair dealing to their insureds because the very nature of such a contractual agreement would allow ldquounshyscrupulous insurers to take advantage of their insuredrsquos misfortunes in bargaining for settlement or resolution of claimsrdquo

The court went on to say that ldquoif an insured suffers a loss he cannot simply contract with another insurance company to cover that loss By contrast an employee who has been demoted transferred or discharged may seek alternative employmentrdquo (emphasis added)

The court ruled that a ldquospecial relationshiprdquo does not exist in an employeremployee relationship for two reashysons 1 In Texas employment is ldquoat willrdquo and 2 Insurance contracts are ldquomuch more restrictive than employment agreementsrdquo

The court also pointed out that in Texas there is only one recognized public policy exception to the common law at-will doctrine in the state recognized more than a decade ago in Sabine Pilot Service Inc v Hauck (which held that employees may not be fired for refusing to perform illegal acts for which there are criminal penalshyties) The court reasoned that if they adopted another exception for breach of a duty of good faith and fair dealing it would ldquotend to subvert those statutory

schemes (which are adopted to govern employment reshylationships) by allowing employees to make an end-run around the procedural requirements and specific remshyedies the existing statutes establishrdquo

The Midland police officers sued for discrimination and retaliation under the Texas Labor Code However the court held that because the officers failed to exhaust their administrative remedies those claims were properly dismissed In the eyes of the court the officers were effectively asking to be excused from the administrative requirements by ldquocreating a common law cause of action for the same actions of the City on which they based their suit under the Labor Coderdquo The court reshyfused to recognize a claim for breach of the duty of good faith and fair dealing under these facts and upheld the dismissal of the officersrsquo claim

While the officers lost on most of their claims two of them will get a new hearing on their claims for reinshystatement another issue at the trial court level

The Bottom Line This was a welcome and helpful ruling for Texas emshyployers the Supreme Court wisely recognized that employees could use good faith and fair dealing claims to circumvent administrative requirements to resolve employment-related disputes To rule otherwise would have created a much broader exception to the at will employment doctrine than ever before

Reneacutee M Miller

Attorney at Law

13

TBT Summer2000

Helpful Labor and Employment Law Websites Name Website

Findlaw Labor and Employment Law wwwfindlawcom

Hieros Gamos Labor Law wwwhgorgemployhtml

Legal Engine wwwlegalenginecom

LII Labor Law Materials wwwlawcornelledu

Law News Network Employment Law Center wwwlawnewsnetworkcompracticeemploymentlaw

Online Law Library wwwfplceduolliehtm

Nolo Legal Encyclopedia wwwnolocomencyclopediaindexhtml

WWW Virtual Law Library wwwlawindianaedulawv-lib

(The above sites will help you find just about every law in the country ndash and every federal and state court decision thatrsquos available on the Internet And theyrsquore free)

Labor and Employment Forms Sites

Forms Website

FMLA Forms wwwdolgovdolesafmlahtm

Te

xa

s B

us

ine

ss

Co

nfe

ren

ce

Da

tes

- 2

00

0

IRS Forms (W04 SS-4 etc)

Government Agency Sites

Agency

Americans with Disabilities Act

US Department of Labor (DOL)

DOL Employment and Training Admininstration

Federal Mediation and Conciliation Service

DOL ndash ELAWS ndash Employment Laws Assistance For Workers and Small Business

DOL ndash Office of Federal Contract Compliance

wwwirsustreasgovprod

Website

wwwusdojgovcrtadapubsadatxt

wwwdolgov

wwwdoletagov

wwwfmcsgov

wwwdolgovelaws

wwwdolgovdolesapublicofcp_orghtm

14

TBT Summer2000

Your Technology Policies E-Mail the Internet Voice Mail Telephone and Computer Network Systems Used by Employees

A recent survey by Rutgers University reveals that more than two-thirds of American employees use a computer at work daily These workers spend an average of 35 of their workday using a computer and 23 of their working time on the Internet In a separate study conshyducted by NielsenNet Ratings it was found that Americans are spending twice as much time online at work than they do at home

And Americarsquos employers are using computers in soarshying numbers About 75 of all American employers now use intranet systems to provide human resource-related services to their workers Research conducted by Watson Wyatt Worldwide indicates that this is a dramatic inshycrease from 1998 when only half of the countryrsquos employers used intranet systems

Advances in detection software are also allowing emshyployers to flush out the Internet junkies in the workplace A survey released April 12 2000 by the American Management Association (the AMA) reveals that nearly three-fourths of major American companies

responding to the survey review and record their emshyployeesrsquo e-mail messages phone calls computer files and Internet connections By contrast the AMA survey taken in 1997 revealed that only 35 of employers were monishytoring their workersrsquo communications The AMA received 2133 responses from human resources proshyfessionals at AMA client and member companies for this yearrsquos survey (2000 AMA Survey Workplace Monitoring and Surveillance)

According to the survey the review and storage of e-mail messages has increased from 15 in 1997 to 38 this year Thirty-one percent of the responding employshyers indicated they review computer files an increase from 14 in 1997 Fifty-four percent of the businesses responding said they monitor their employeesrsquo Internet connections

Given this explosion of technology in the workplace it is becoming increasingly important to have a policy covshyering these types of communications to set reasonable standards of conduct and to limit your potential legal liability E-mail the Internet intranet systems and voice mail have all become efficient and in many cases inshyvaluable tools in the workplace However to date there are almost no reported cases from courts anywhere in the country which provide clear guidelines to explain the balance between an employerrsquos legitimate business interests in these types of employee communications and their employees expectation of privacy In the absence of such legal consensus your policy should be clear well publicized and straightforward to reduce or eliminate any employeersquos expectation of privacy Electronic monishytoring policies need to be clearly defined and provided to all employees through every available communicashytion channel

An Internet e-mail or voice mail invasion of privacy claim would probably be brought on the common law theory of ldquointrusion on seclusionrdquo An employee plaintiffrsquos success in such a lawsuit would depend on whether the employee had a reasonable expectation of privacy Such expectations are usually created by an emshyployer within the employeersquos workplace environment

To minimize your employees chances of successfully asserting an invasion of privacy claim you must adopt express clear e-mail voice mail and Internet policies

8

TBT Summer2000

informing your employees that they do not have a pershysonal privacy right in any matters received by created in sent over or stored in your system Whether or not you allow your employees to use company computers for personal business during their breaks lunch hours and before or after work hours is a decision only you can make

The real issue should be ldquoAre we getting our work done and is the quality of that work what it should berdquo Many employers have no objection to their employees using company resources so long as they get their required work done in a timely fashion and donrsquot abuse the privishylege Itrsquos probably unrealistic to expect that employees will never look at a weather report or check the score from last nightrsquos big game on the Internet And letrsquos face it you need your employees to be comfortable enough with their computers to work effectively Many times actually using the computer is the only way to obtain that proficiency However most employers do not want their employees playing endless games of Solishytaire or accessing pornographic adult sites during working hours

As in all areas of employee conduct an employer has the right to establish reasonable standards of behavior and stick to them every time with everybody Your policy should inform all employees that information on company-provided computers and e-mail is to be used for business purposes during working hours that comshyputer information and e-mail is the companyrsquos property and that you may be monitoring such communications from time to time for business purposes

This policy should be communicated to your employshyees not only through your employee policy handbook but also in e-mail voice mail and Internet instruction guides and on-screen notices Employees should also be required to sign and acknowledge your policy of teleshyphone electronic and computer network access

As in any other area developing communicating and enforcing a consistent policy in an evenhanded manner should be a priority Without a policy you may have a very hard time disciplining employees who misuse a voice mail e-mail or Internet system Even if you allow some level of personal use of these systems you will alshymost certainly want to prohibit inappropriate conduct such as sending racist or sexist jokes to co-workers or running the Super Bowl pool over your system

More than half of the employers surveyed in this yearrsquos AMA study indicated they have disciplined employees for their personal use or misuse of telephones Internet access or e-mail About 25 of the companies have fired workers for these violations For example Xerox Corshyporation based in Stamford Connecticut fired 40 workers in the fall of 1999 for what it deemed to be gross misuse of company Internet resources According to Xerox company spokeswoman Christa Carone the fired employees were spending ldquothe majority of their days on inappropriate sitesrdquo

Many employers are also using ldquoblockingrdquo software to prevent telephone connections to inappropriate or unshyauthorized phone numbers In an effort to control employee misuse of company telecommunications equipshyment 29 of employers block Internet connections to inappropriate or unauthorized web sites

Accessing employee voice mail can be analogized to teleshyphone monitoring cases It has long been established by courts around the country that employers may not listen to their employees personal phone calls any longer than absolutely necessary to decide if a conversation is pershysonal in nature Likewise the safest advice for accessing messages left on an employeersquos voice mail sysshytem is to fast forward any voice mail messages that are of a personal nature

A Sample E-Mail Voice Mail Internet Policy

XYZ Corporation respects the privacy of its employees However an XYZ employee may not expect such prishyvacy rights to extend to the use of XYZ-owned systems property equipment or supplies or to work-related conshyduct This policy is intended to notify all XYZ employees that no reasonable expectation of privacy exists in conshynection with your use of XYZrsquos systems property equipment or supplies XYZ employees are prohibited from withholding information maintained within comshypany supplied containers including but not limited to computer files computer databases desks lockers and cabinets The following rules also apply to the use of XYZ property

1 XYZrsquos Right to Access information While XYZ employees have individual passwords to e-mail

9

TBT Summer2000

continued Your Technology Policies voice mail and computer network systems these sysshytems are at all times accessible to and by XYZ and may be subject to unannounced periodic inspecshytions by XYZ for business purposes This policy apshyplies to all telephone electronic and computer net work systems which are accessed on or from XYZrsquos premises used in a manner which identifies the employee with XYZ accessed using XYZ computer equipment andor via XYZ-paid access methods XYZ employees may not use secret passwords and all system passwords must be available to XYZ at all times XYZ maintains back-up copies of e-mail and voice mail and these records as well as the usage records of XYZ computer network systems may be reviewed by the company for legal business or other reasons

2 Use is Restricted to XYZ business XYZrsquos employshyees are expected to use company e-mail voice mail and computer network systems for XYZ business (during working hours) not for personal reasons Personal reasons include but are not limited to nonshyjob-related communications research or solicitashytions or soliciting for political or religious causes outside organizations or other commercial ventures

3 Prohibited Content XYZ employees are prohibited from using XYZrsquos telephone electronic or computer network systems in any manner that may be offenshysive or disruptive to others This includes but is not limited to the transmission of racial or ethnic slurs gender-specific comments sexually explicit images or messages any remarks that would offend others on the basis of their age political or religious beshyliefs disability national origin or sexual orientation or any messages that may be interpreted to disparshyage or harass others No telephone electronic or computer network communications may be sent which represent the sender as from another comshypany or as someone else or which try to hide the senderrsquos identity Inappropriate or excessive pershysonal use of XYZrsquos property or telephone electronic or computer network systems will result in disciplinshyary action up to and including termination

Because it is so important to reduce or negate an employeersquos expectation of privacy it is very wise to obshytain the express written consent of each employee allowing you to review and monitor messages files and the usage of these systems

B Sample E-Mail Voice Mail Telephone and Computer Network Systems Use Acknowledgment Form

I acknowledge that all telephone and electronic comshymunications systems and all information received from transmitted by or stored in these systems are and will remain XYZrsquos property I also acknowledge that these systems are to be used only for job-related purposes (durshying business hours) not for personal purposes I understand that I have no personal privacy right or any expectation of privacy in connection with my use of this equipment or with the receipt transmission or storage of information in XYZrsquos equipment

I agree not to access a file use a code or retrieve any stored communication unless I am authorized to do so Further I agree to disclose messages or information from telephone or electronic communications systems only to authorized individuals I acknowledge and conshysent to XYZrsquos monitoring my use of this equipment at its discretion at any time XYZrsquos monitoring may inshyclude printing out and reading all telephone and e-mail leaving entering or stored in these systems I further agree to abide by XYZrsquos policy prohibiting the use of telephone and electronic communication systems to transmit offensive lewd racist or sexist messages

I understand that violation of this policy can lead to disshyciplinary action up termination

to and including immediate

_____________________ Employee Signature Witness

____________________ Date

Reneacutee M Miller Attorney at Law

These sample statements policies and forms are merely guidelines Every employerrsquos policies must be tailored by individual circumstances Before implementing any policies management should consult with legal counsel to ensure compliance with appropriate federal and state

statutes and case law to reduce the possibility of arbitration or litigation

10

TBT Summer2000

BUSINESS BRIEFS Summer 2000 Congress Repeals Social Security Earnings Limit

In a rare display of bipartisan agreement Congress recently unanimously passed legislation eliminating the Soshycial Security earnings penalty for workers between the ages of 65 and 69 President Clinton signed this measure into law on April 7 2000 but the change is retroactive to Janushyary 1 Until now these individualsrsquo Social Security benefits were cut by $1 for every $3 they earned in excess of $17000 per year

The new law does not affect younger retirees (aged 62 to 65) who will still forfeit $1 for every $2 they earn over $10080 or Americans over the age of 70 who have alshyways been allowed to work as much as they desire without losing any benefits

This new law with its unanimous and bipartisan support may be an indication of changing attitudes toward older people and work For example in 1964 43 of all Amerishycan males between the ages of 65 and 69 worked However by 1985 only 25 were working a decline of about 40 in just two decades During this same brief period the employment rate for males in the next younger age group ndash 60 to 64 ndash dropped by almost one third from 79 to 55

These trends stopped in the mid-1980rsquos The number of men in their 60rsquos who were still in the workforce began stabilizing and then increasing the same was true for older women The era of earlier and earlier retirement seems to be over

There are a number of reasons for this change The conshycept of mandatory retirement has been eliminated for the vast majority of industries and professions and the nation is enjoying record-breaking low unemployment increasshying the demand for workers of all types and skills And many Americans are living longer and enjoying better health than ever before A number of surveys suggest that most baby boomers (who will be retiring during the next several decades) hope to continue working past the age of 65 even if only part time

Get Your New Employees Up to Speed Quickly Some on the job training tips

Every employer dreams of hiring new workers who are already experienced in the type of work theyrsquoll be doing However especially in todayrsquos tight labor market that simshyply isnrsquot always possible Here are a few basics of on the job

training to help get your new workers up and running as quickly as possible

First never assume that a new employee is familiar with the procedures or equipment of the job theyrsquove been hired for regardless of what their resume says theyrsquove done for another employer in the past Procedures and equipment vary wildly from company to company sometimes even from branch to branch of the same employer Many types of equipment require safety training without which emshyployees are at risk and the company puts itself in danger of violating OSHA standards and regulations New emshyployees should always be thoroughly warned and trained about hazardous equipment

Second before beginning a new employeersquos on the job training meet with supervisors and other key employees to decide exactly what the new employee is going to be doing Write these functions down and go over them careshyfully in clear straightforward language with the employee on their first day with the company New employees need to know exactly what is going to be expected of them not only does it help to focus them it also gives them tangible goals There is no federal or state law requiring a private sector employer to translate job descriptions policies or instructions into a language other than English However if you realistically expect to have enforceable policies or job descriptions it is extremely helpful to make sure that your expectations are explained to the new worker in a language that they understand and comprehend

Third if at all possible assign an experienced employee to work with your new hire during their training period This veteran employee should explain every facet of the job and continue to monitor the individualrsquos command of the work until it is completely satisfactory Many employers feel that the best case scenario is to have the employee who is leaving the position be in charge of training the new worker (unless the employee was fired or has quit with negative feelings toward the company) If an employee is leaving on good terms and quitting with two to three weeks notice often a smooth transition can take place by having that employee work with the new hire for as much of that notice period as possible

Finally if you are hiring large number of employees at the same time you may with to consider a more formal orienshytation and training program

Reneacutee M Miller Attorney at Law

11

TBT Summer2000

LEGAL BRIEFS Summer 2000 A Unanimous Texas Supreme Court Refuses to Create a New Exception to the At-Will Employment Doctrine

Herersquos some good news for Texas employers and the at-will employment doctrine In a 9-0 opinion the Texas Supreme Court recently refused to impose a legal oblishygation on employers to act with ldquogood faith and fair dealingrdquo in their relations with employees The court held that such a duty cannot be forced on employers because there is no ldquospecial relationshiprdquo between an employer and its workers City of Midland v OrsquoBryant No 97-0954 Texas Supreme Court (April 6 2000)

While this was the first time that the court specifically addressed this issue the ruling conforms with the statersquos at-will employment doctrine Basically the at-will docshytrine means that the employment relationship is indefinite in duration employees are free to quit and employers are free to fire at any time ldquofor any reason or no reason at allrdquo as the court said The high court ruled that imposing a duty of good faith and fair dealshying on the City of Midland would permit the plaintiffs to make an ldquoend runrdquo around existing laws regulating the employment relationship The five plaintiffs had already filed and voluntarily dismissed two lawsuits brought under the Americans with Disabilities Act

Judge Priscilla R Owen reversing the state appeals courtsrsquo decision wrote ldquoa court created duty of good faith and fair dealing would completely alter the nature of the at-will employment relationship which generally can be terminated by either party for any reason or no reason at all and we accordingly decline to change the at-will nature of employment in Texasrdquo

The court stated that its ruling applies to both private and government employers ldquoinasmuch as both types of employers are subject to applicable laws regulations and contractual agreementsrdquo Additionally the court said that the holding applies whether or not the employment relationship is governed by an express agreement The court reasoned that a common-law duty of good faith and fair dealing is unnecessary when there are express contractual limits on the partiesrsquo rights

The Facts The case was brought by five police officers four of whom were disabled who were employees of the City of Midland The City informed the officers that their duties were going to be reclassified as civilian positions

and they were given three choices 1 They could stay in their jobs and be reclassified as civilians 2 They could transfer to other positions in the police department and keep their status as police officers or 3 They could transshyfer to other civilian job positions However if the officers chose to accept the civilian job positions both their benshyefits and pay would be cut The City of Midland asserted that it was facing budgetary constraints and the job reshyclassifications were simply a cost-cutting measure

The five officers sued the City of Midland alleging that it was unlawful to require them to demonstrate greater physical capabilities than they had in the past For some reason the officers voluntarily dismissed this case The City then reclassified the five officers in civilian jobs In response the officers filed a second lawsuit this time asserting discrimination retaliation and that Midland had breached its ldquoduty of good faith and fair dealingrdquo That claim was dismissed by a trial judge However the question of whether the City had a duty of good faith and fair dealing to its employees eventually made its way to the statersquos highest court

Legal Analysis The Texas Supreme Court began its unanimous opinshyion by pointing out that not every contractual relationship creates a duty of good faith and fair dealshying In an earlier lawsuit involving insurance carriers

12

TBTcontinued LEGAL BRIEFS Summer 2000 Summer2000

the court held that such a duty exists only if there is a ldquospecial relationshiprdquo between the parties In that case the court held that insurance carriers owe a duty of good faith and fair dealing to their insureds because the very nature of such a contractual agreement would allow ldquounshyscrupulous insurers to take advantage of their insuredrsquos misfortunes in bargaining for settlement or resolution of claimsrdquo

The court went on to say that ldquoif an insured suffers a loss he cannot simply contract with another insurance company to cover that loss By contrast an employee who has been demoted transferred or discharged may seek alternative employmentrdquo (emphasis added)

The court ruled that a ldquospecial relationshiprdquo does not exist in an employeremployee relationship for two reashysons 1 In Texas employment is ldquoat willrdquo and 2 Insurance contracts are ldquomuch more restrictive than employment agreementsrdquo

The court also pointed out that in Texas there is only one recognized public policy exception to the common law at-will doctrine in the state recognized more than a decade ago in Sabine Pilot Service Inc v Hauck (which held that employees may not be fired for refusing to perform illegal acts for which there are criminal penalshyties) The court reasoned that if they adopted another exception for breach of a duty of good faith and fair dealing it would ldquotend to subvert those statutory

schemes (which are adopted to govern employment reshylationships) by allowing employees to make an end-run around the procedural requirements and specific remshyedies the existing statutes establishrdquo

The Midland police officers sued for discrimination and retaliation under the Texas Labor Code However the court held that because the officers failed to exhaust their administrative remedies those claims were properly dismissed In the eyes of the court the officers were effectively asking to be excused from the administrative requirements by ldquocreating a common law cause of action for the same actions of the City on which they based their suit under the Labor Coderdquo The court reshyfused to recognize a claim for breach of the duty of good faith and fair dealing under these facts and upheld the dismissal of the officersrsquo claim

While the officers lost on most of their claims two of them will get a new hearing on their claims for reinshystatement another issue at the trial court level

The Bottom Line This was a welcome and helpful ruling for Texas emshyployers the Supreme Court wisely recognized that employees could use good faith and fair dealing claims to circumvent administrative requirements to resolve employment-related disputes To rule otherwise would have created a much broader exception to the at will employment doctrine than ever before

Reneacutee M Miller

Attorney at Law

13

TBT Summer2000

Helpful Labor and Employment Law Websites Name Website

Findlaw Labor and Employment Law wwwfindlawcom

Hieros Gamos Labor Law wwwhgorgemployhtml

Legal Engine wwwlegalenginecom

LII Labor Law Materials wwwlawcornelledu

Law News Network Employment Law Center wwwlawnewsnetworkcompracticeemploymentlaw

Online Law Library wwwfplceduolliehtm

Nolo Legal Encyclopedia wwwnolocomencyclopediaindexhtml

WWW Virtual Law Library wwwlawindianaedulawv-lib

(The above sites will help you find just about every law in the country ndash and every federal and state court decision thatrsquos available on the Internet And theyrsquore free)

Labor and Employment Forms Sites

Forms Website

FMLA Forms wwwdolgovdolesafmlahtm

Te

xa

s B

us

ine

ss

Co

nfe

ren

ce

Da

tes

- 2

00

0

IRS Forms (W04 SS-4 etc)

Government Agency Sites

Agency

Americans with Disabilities Act

US Department of Labor (DOL)

DOL Employment and Training Admininstration

Federal Mediation and Conciliation Service

DOL ndash ELAWS ndash Employment Laws Assistance For Workers and Small Business

DOL ndash Office of Federal Contract Compliance

wwwirsustreasgovprod

Website

wwwusdojgovcrtadapubsadatxt

wwwdolgov

wwwdoletagov

wwwfmcsgov

wwwdolgovelaws

wwwdolgovdolesapublicofcp_orghtm

14

TBT Summer2000

informing your employees that they do not have a pershysonal privacy right in any matters received by created in sent over or stored in your system Whether or not you allow your employees to use company computers for personal business during their breaks lunch hours and before or after work hours is a decision only you can make

The real issue should be ldquoAre we getting our work done and is the quality of that work what it should berdquo Many employers have no objection to their employees using company resources so long as they get their required work done in a timely fashion and donrsquot abuse the privishylege Itrsquos probably unrealistic to expect that employees will never look at a weather report or check the score from last nightrsquos big game on the Internet And letrsquos face it you need your employees to be comfortable enough with their computers to work effectively Many times actually using the computer is the only way to obtain that proficiency However most employers do not want their employees playing endless games of Solishytaire or accessing pornographic adult sites during working hours

As in all areas of employee conduct an employer has the right to establish reasonable standards of behavior and stick to them every time with everybody Your policy should inform all employees that information on company-provided computers and e-mail is to be used for business purposes during working hours that comshyputer information and e-mail is the companyrsquos property and that you may be monitoring such communications from time to time for business purposes

This policy should be communicated to your employshyees not only through your employee policy handbook but also in e-mail voice mail and Internet instruction guides and on-screen notices Employees should also be required to sign and acknowledge your policy of teleshyphone electronic and computer network access

As in any other area developing communicating and enforcing a consistent policy in an evenhanded manner should be a priority Without a policy you may have a very hard time disciplining employees who misuse a voice mail e-mail or Internet system Even if you allow some level of personal use of these systems you will alshymost certainly want to prohibit inappropriate conduct such as sending racist or sexist jokes to co-workers or running the Super Bowl pool over your system

More than half of the employers surveyed in this yearrsquos AMA study indicated they have disciplined employees for their personal use or misuse of telephones Internet access or e-mail About 25 of the companies have fired workers for these violations For example Xerox Corshyporation based in Stamford Connecticut fired 40 workers in the fall of 1999 for what it deemed to be gross misuse of company Internet resources According to Xerox company spokeswoman Christa Carone the fired employees were spending ldquothe majority of their days on inappropriate sitesrdquo

Many employers are also using ldquoblockingrdquo software to prevent telephone connections to inappropriate or unshyauthorized phone numbers In an effort to control employee misuse of company telecommunications equipshyment 29 of employers block Internet connections to inappropriate or unauthorized web sites

Accessing employee voice mail can be analogized to teleshyphone monitoring cases It has long been established by courts around the country that employers may not listen to their employees personal phone calls any longer than absolutely necessary to decide if a conversation is pershysonal in nature Likewise the safest advice for accessing messages left on an employeersquos voice mail sysshytem is to fast forward any voice mail messages that are of a personal nature

A Sample E-Mail Voice Mail Internet Policy

XYZ Corporation respects the privacy of its employees However an XYZ employee may not expect such prishyvacy rights to extend to the use of XYZ-owned systems property equipment or supplies or to work-related conshyduct This policy is intended to notify all XYZ employees that no reasonable expectation of privacy exists in conshynection with your use of XYZrsquos systems property equipment or supplies XYZ employees are prohibited from withholding information maintained within comshypany supplied containers including but not limited to computer files computer databases desks lockers and cabinets The following rules also apply to the use of XYZ property

1 XYZrsquos Right to Access information While XYZ employees have individual passwords to e-mail

9

TBT Summer2000

continued Your Technology Policies voice mail and computer network systems these sysshytems are at all times accessible to and by XYZ and may be subject to unannounced periodic inspecshytions by XYZ for business purposes This policy apshyplies to all telephone electronic and computer net work systems which are accessed on or from XYZrsquos premises used in a manner which identifies the employee with XYZ accessed using XYZ computer equipment andor via XYZ-paid access methods XYZ employees may not use secret passwords and all system passwords must be available to XYZ at all times XYZ maintains back-up copies of e-mail and voice mail and these records as well as the usage records of XYZ computer network systems may be reviewed by the company for legal business or other reasons

2 Use is Restricted to XYZ business XYZrsquos employshyees are expected to use company e-mail voice mail and computer network systems for XYZ business (during working hours) not for personal reasons Personal reasons include but are not limited to nonshyjob-related communications research or solicitashytions or soliciting for political or religious causes outside organizations or other commercial ventures

3 Prohibited Content XYZ employees are prohibited from using XYZrsquos telephone electronic or computer network systems in any manner that may be offenshysive or disruptive to others This includes but is not limited to the transmission of racial or ethnic slurs gender-specific comments sexually explicit images or messages any remarks that would offend others on the basis of their age political or religious beshyliefs disability national origin or sexual orientation or any messages that may be interpreted to disparshyage or harass others No telephone electronic or computer network communications may be sent which represent the sender as from another comshypany or as someone else or which try to hide the senderrsquos identity Inappropriate or excessive pershysonal use of XYZrsquos property or telephone electronic or computer network systems will result in disciplinshyary action up to and including termination

Because it is so important to reduce or negate an employeersquos expectation of privacy it is very wise to obshytain the express written consent of each employee allowing you to review and monitor messages files and the usage of these systems

B Sample E-Mail Voice Mail Telephone and Computer Network Systems Use Acknowledgment Form

I acknowledge that all telephone and electronic comshymunications systems and all information received from transmitted by or stored in these systems are and will remain XYZrsquos property I also acknowledge that these systems are to be used only for job-related purposes (durshying business hours) not for personal purposes I understand that I have no personal privacy right or any expectation of privacy in connection with my use of this equipment or with the receipt transmission or storage of information in XYZrsquos equipment

I agree not to access a file use a code or retrieve any stored communication unless I am authorized to do so Further I agree to disclose messages or information from telephone or electronic communications systems only to authorized individuals I acknowledge and conshysent to XYZrsquos monitoring my use of this equipment at its discretion at any time XYZrsquos monitoring may inshyclude printing out and reading all telephone and e-mail leaving entering or stored in these systems I further agree to abide by XYZrsquos policy prohibiting the use of telephone and electronic communication systems to transmit offensive lewd racist or sexist messages

I understand that violation of this policy can lead to disshyciplinary action up termination

to and including immediate

_____________________ Employee Signature Witness

____________________ Date

Reneacutee M Miller Attorney at Law

These sample statements policies and forms are merely guidelines Every employerrsquos policies must be tailored by individual circumstances Before implementing any policies management should consult with legal counsel to ensure compliance with appropriate federal and state

statutes and case law to reduce the possibility of arbitration or litigation

10

TBT Summer2000

BUSINESS BRIEFS Summer 2000 Congress Repeals Social Security Earnings Limit

In a rare display of bipartisan agreement Congress recently unanimously passed legislation eliminating the Soshycial Security earnings penalty for workers between the ages of 65 and 69 President Clinton signed this measure into law on April 7 2000 but the change is retroactive to Janushyary 1 Until now these individualsrsquo Social Security benefits were cut by $1 for every $3 they earned in excess of $17000 per year

The new law does not affect younger retirees (aged 62 to 65) who will still forfeit $1 for every $2 they earn over $10080 or Americans over the age of 70 who have alshyways been allowed to work as much as they desire without losing any benefits

This new law with its unanimous and bipartisan support may be an indication of changing attitudes toward older people and work For example in 1964 43 of all Amerishycan males between the ages of 65 and 69 worked However by 1985 only 25 were working a decline of about 40 in just two decades During this same brief period the employment rate for males in the next younger age group ndash 60 to 64 ndash dropped by almost one third from 79 to 55

These trends stopped in the mid-1980rsquos The number of men in their 60rsquos who were still in the workforce began stabilizing and then increasing the same was true for older women The era of earlier and earlier retirement seems to be over

There are a number of reasons for this change The conshycept of mandatory retirement has been eliminated for the vast majority of industries and professions and the nation is enjoying record-breaking low unemployment increasshying the demand for workers of all types and skills And many Americans are living longer and enjoying better health than ever before A number of surveys suggest that most baby boomers (who will be retiring during the next several decades) hope to continue working past the age of 65 even if only part time

Get Your New Employees Up to Speed Quickly Some on the job training tips

Every employer dreams of hiring new workers who are already experienced in the type of work theyrsquoll be doing However especially in todayrsquos tight labor market that simshyply isnrsquot always possible Here are a few basics of on the job

training to help get your new workers up and running as quickly as possible

First never assume that a new employee is familiar with the procedures or equipment of the job theyrsquove been hired for regardless of what their resume says theyrsquove done for another employer in the past Procedures and equipment vary wildly from company to company sometimes even from branch to branch of the same employer Many types of equipment require safety training without which emshyployees are at risk and the company puts itself in danger of violating OSHA standards and regulations New emshyployees should always be thoroughly warned and trained about hazardous equipment

Second before beginning a new employeersquos on the job training meet with supervisors and other key employees to decide exactly what the new employee is going to be doing Write these functions down and go over them careshyfully in clear straightforward language with the employee on their first day with the company New employees need to know exactly what is going to be expected of them not only does it help to focus them it also gives them tangible goals There is no federal or state law requiring a private sector employer to translate job descriptions policies or instructions into a language other than English However if you realistically expect to have enforceable policies or job descriptions it is extremely helpful to make sure that your expectations are explained to the new worker in a language that they understand and comprehend

Third if at all possible assign an experienced employee to work with your new hire during their training period This veteran employee should explain every facet of the job and continue to monitor the individualrsquos command of the work until it is completely satisfactory Many employers feel that the best case scenario is to have the employee who is leaving the position be in charge of training the new worker (unless the employee was fired or has quit with negative feelings toward the company) If an employee is leaving on good terms and quitting with two to three weeks notice often a smooth transition can take place by having that employee work with the new hire for as much of that notice period as possible

Finally if you are hiring large number of employees at the same time you may with to consider a more formal orienshytation and training program

Reneacutee M Miller Attorney at Law

11

TBT Summer2000

LEGAL BRIEFS Summer 2000 A Unanimous Texas Supreme Court Refuses to Create a New Exception to the At-Will Employment Doctrine

Herersquos some good news for Texas employers and the at-will employment doctrine In a 9-0 opinion the Texas Supreme Court recently refused to impose a legal oblishygation on employers to act with ldquogood faith and fair dealingrdquo in their relations with employees The court held that such a duty cannot be forced on employers because there is no ldquospecial relationshiprdquo between an employer and its workers City of Midland v OrsquoBryant No 97-0954 Texas Supreme Court (April 6 2000)

While this was the first time that the court specifically addressed this issue the ruling conforms with the statersquos at-will employment doctrine Basically the at-will docshytrine means that the employment relationship is indefinite in duration employees are free to quit and employers are free to fire at any time ldquofor any reason or no reason at allrdquo as the court said The high court ruled that imposing a duty of good faith and fair dealshying on the City of Midland would permit the plaintiffs to make an ldquoend runrdquo around existing laws regulating the employment relationship The five plaintiffs had already filed and voluntarily dismissed two lawsuits brought under the Americans with Disabilities Act

Judge Priscilla R Owen reversing the state appeals courtsrsquo decision wrote ldquoa court created duty of good faith and fair dealing would completely alter the nature of the at-will employment relationship which generally can be terminated by either party for any reason or no reason at all and we accordingly decline to change the at-will nature of employment in Texasrdquo

The court stated that its ruling applies to both private and government employers ldquoinasmuch as both types of employers are subject to applicable laws regulations and contractual agreementsrdquo Additionally the court said that the holding applies whether or not the employment relationship is governed by an express agreement The court reasoned that a common-law duty of good faith and fair dealing is unnecessary when there are express contractual limits on the partiesrsquo rights

The Facts The case was brought by five police officers four of whom were disabled who were employees of the City of Midland The City informed the officers that their duties were going to be reclassified as civilian positions

and they were given three choices 1 They could stay in their jobs and be reclassified as civilians 2 They could transfer to other positions in the police department and keep their status as police officers or 3 They could transshyfer to other civilian job positions However if the officers chose to accept the civilian job positions both their benshyefits and pay would be cut The City of Midland asserted that it was facing budgetary constraints and the job reshyclassifications were simply a cost-cutting measure

The five officers sued the City of Midland alleging that it was unlawful to require them to demonstrate greater physical capabilities than they had in the past For some reason the officers voluntarily dismissed this case The City then reclassified the five officers in civilian jobs In response the officers filed a second lawsuit this time asserting discrimination retaliation and that Midland had breached its ldquoduty of good faith and fair dealingrdquo That claim was dismissed by a trial judge However the question of whether the City had a duty of good faith and fair dealing to its employees eventually made its way to the statersquos highest court

Legal Analysis The Texas Supreme Court began its unanimous opinshyion by pointing out that not every contractual relationship creates a duty of good faith and fair dealshying In an earlier lawsuit involving insurance carriers

12

TBTcontinued LEGAL BRIEFS Summer 2000 Summer2000

the court held that such a duty exists only if there is a ldquospecial relationshiprdquo between the parties In that case the court held that insurance carriers owe a duty of good faith and fair dealing to their insureds because the very nature of such a contractual agreement would allow ldquounshyscrupulous insurers to take advantage of their insuredrsquos misfortunes in bargaining for settlement or resolution of claimsrdquo

The court went on to say that ldquoif an insured suffers a loss he cannot simply contract with another insurance company to cover that loss By contrast an employee who has been demoted transferred or discharged may seek alternative employmentrdquo (emphasis added)

The court ruled that a ldquospecial relationshiprdquo does not exist in an employeremployee relationship for two reashysons 1 In Texas employment is ldquoat willrdquo and 2 Insurance contracts are ldquomuch more restrictive than employment agreementsrdquo

The court also pointed out that in Texas there is only one recognized public policy exception to the common law at-will doctrine in the state recognized more than a decade ago in Sabine Pilot Service Inc v Hauck (which held that employees may not be fired for refusing to perform illegal acts for which there are criminal penalshyties) The court reasoned that if they adopted another exception for breach of a duty of good faith and fair dealing it would ldquotend to subvert those statutory

schemes (which are adopted to govern employment reshylationships) by allowing employees to make an end-run around the procedural requirements and specific remshyedies the existing statutes establishrdquo

The Midland police officers sued for discrimination and retaliation under the Texas Labor Code However the court held that because the officers failed to exhaust their administrative remedies those claims were properly dismissed In the eyes of the court the officers were effectively asking to be excused from the administrative requirements by ldquocreating a common law cause of action for the same actions of the City on which they based their suit under the Labor Coderdquo The court reshyfused to recognize a claim for breach of the duty of good faith and fair dealing under these facts and upheld the dismissal of the officersrsquo claim

While the officers lost on most of their claims two of them will get a new hearing on their claims for reinshystatement another issue at the trial court level

The Bottom Line This was a welcome and helpful ruling for Texas emshyployers the Supreme Court wisely recognized that employees could use good faith and fair dealing claims to circumvent administrative requirements to resolve employment-related disputes To rule otherwise would have created a much broader exception to the at will employment doctrine than ever before

Reneacutee M Miller

Attorney at Law

13

TBT Summer2000

Helpful Labor and Employment Law Websites Name Website

Findlaw Labor and Employment Law wwwfindlawcom

Hieros Gamos Labor Law wwwhgorgemployhtml

Legal Engine wwwlegalenginecom

LII Labor Law Materials wwwlawcornelledu

Law News Network Employment Law Center wwwlawnewsnetworkcompracticeemploymentlaw

Online Law Library wwwfplceduolliehtm

Nolo Legal Encyclopedia wwwnolocomencyclopediaindexhtml

WWW Virtual Law Library wwwlawindianaedulawv-lib

(The above sites will help you find just about every law in the country ndash and every federal and state court decision thatrsquos available on the Internet And theyrsquore free)

Labor and Employment Forms Sites

Forms Website

FMLA Forms wwwdolgovdolesafmlahtm

Te

xa

s B

us

ine

ss

Co

nfe

ren

ce

Da

tes

- 2

00

0

IRS Forms (W04 SS-4 etc)

Government Agency Sites

Agency

Americans with Disabilities Act

US Department of Labor (DOL)

DOL Employment and Training Admininstration

Federal Mediation and Conciliation Service

DOL ndash ELAWS ndash Employment Laws Assistance For Workers and Small Business

DOL ndash Office of Federal Contract Compliance

wwwirsustreasgovprod

Website

wwwusdojgovcrtadapubsadatxt

wwwdolgov

wwwdoletagov

wwwfmcsgov

wwwdolgovelaws

wwwdolgovdolesapublicofcp_orghtm

14

TBT Summer2000

continued Your Technology Policies voice mail and computer network systems these sysshytems are at all times accessible to and by XYZ and may be subject to unannounced periodic inspecshytions by XYZ for business purposes This policy apshyplies to all telephone electronic and computer net work systems which are accessed on or from XYZrsquos premises used in a manner which identifies the employee with XYZ accessed using XYZ computer equipment andor via XYZ-paid access methods XYZ employees may not use secret passwords and all system passwords must be available to XYZ at all times XYZ maintains back-up copies of e-mail and voice mail and these records as well as the usage records of XYZ computer network systems may be reviewed by the company for legal business or other reasons

2 Use is Restricted to XYZ business XYZrsquos employshyees are expected to use company e-mail voice mail and computer network systems for XYZ business (during working hours) not for personal reasons Personal reasons include but are not limited to nonshyjob-related communications research or solicitashytions or soliciting for political or religious causes outside organizations or other commercial ventures

3 Prohibited Content XYZ employees are prohibited from using XYZrsquos telephone electronic or computer network systems in any manner that may be offenshysive or disruptive to others This includes but is not limited to the transmission of racial or ethnic slurs gender-specific comments sexually explicit images or messages any remarks that would offend others on the basis of their age political or religious beshyliefs disability national origin or sexual orientation or any messages that may be interpreted to disparshyage or harass others No telephone electronic or computer network communications may be sent which represent the sender as from another comshypany or as someone else or which try to hide the senderrsquos identity Inappropriate or excessive pershysonal use of XYZrsquos property or telephone electronic or computer network systems will result in disciplinshyary action up to and including termination

Because it is so important to reduce or negate an employeersquos expectation of privacy it is very wise to obshytain the express written consent of each employee allowing you to review and monitor messages files and the usage of these systems

B Sample E-Mail Voice Mail Telephone and Computer Network Systems Use Acknowledgment Form

I acknowledge that all telephone and electronic comshymunications systems and all information received from transmitted by or stored in these systems are and will remain XYZrsquos property I also acknowledge that these systems are to be used only for job-related purposes (durshying business hours) not for personal purposes I understand that I have no personal privacy right or any expectation of privacy in connection with my use of this equipment or with the receipt transmission or storage of information in XYZrsquos equipment

I agree not to access a file use a code or retrieve any stored communication unless I am authorized to do so Further I agree to disclose messages or information from telephone or electronic communications systems only to authorized individuals I acknowledge and conshysent to XYZrsquos monitoring my use of this equipment at its discretion at any time XYZrsquos monitoring may inshyclude printing out and reading all telephone and e-mail leaving entering or stored in these systems I further agree to abide by XYZrsquos policy prohibiting the use of telephone and electronic communication systems to transmit offensive lewd racist or sexist messages

I understand that violation of this policy can lead to disshyciplinary action up termination

to and including immediate

_____________________ Employee Signature Witness

____________________ Date

Reneacutee M Miller Attorney at Law

These sample statements policies and forms are merely guidelines Every employerrsquos policies must be tailored by individual circumstances Before implementing any policies management should consult with legal counsel to ensure compliance with appropriate federal and state

statutes and case law to reduce the possibility of arbitration or litigation

10

TBT Summer2000

BUSINESS BRIEFS Summer 2000 Congress Repeals Social Security Earnings Limit

In a rare display of bipartisan agreement Congress recently unanimously passed legislation eliminating the Soshycial Security earnings penalty for workers between the ages of 65 and 69 President Clinton signed this measure into law on April 7 2000 but the change is retroactive to Janushyary 1 Until now these individualsrsquo Social Security benefits were cut by $1 for every $3 they earned in excess of $17000 per year

The new law does not affect younger retirees (aged 62 to 65) who will still forfeit $1 for every $2 they earn over $10080 or Americans over the age of 70 who have alshyways been allowed to work as much as they desire without losing any benefits

This new law with its unanimous and bipartisan support may be an indication of changing attitudes toward older people and work For example in 1964 43 of all Amerishycan males between the ages of 65 and 69 worked However by 1985 only 25 were working a decline of about 40 in just two decades During this same brief period the employment rate for males in the next younger age group ndash 60 to 64 ndash dropped by almost one third from 79 to 55

These trends stopped in the mid-1980rsquos The number of men in their 60rsquos who were still in the workforce began stabilizing and then increasing the same was true for older women The era of earlier and earlier retirement seems to be over

There are a number of reasons for this change The conshycept of mandatory retirement has been eliminated for the vast majority of industries and professions and the nation is enjoying record-breaking low unemployment increasshying the demand for workers of all types and skills And many Americans are living longer and enjoying better health than ever before A number of surveys suggest that most baby boomers (who will be retiring during the next several decades) hope to continue working past the age of 65 even if only part time

Get Your New Employees Up to Speed Quickly Some on the job training tips

Every employer dreams of hiring new workers who are already experienced in the type of work theyrsquoll be doing However especially in todayrsquos tight labor market that simshyply isnrsquot always possible Here are a few basics of on the job

training to help get your new workers up and running as quickly as possible

First never assume that a new employee is familiar with the procedures or equipment of the job theyrsquove been hired for regardless of what their resume says theyrsquove done for another employer in the past Procedures and equipment vary wildly from company to company sometimes even from branch to branch of the same employer Many types of equipment require safety training without which emshyployees are at risk and the company puts itself in danger of violating OSHA standards and regulations New emshyployees should always be thoroughly warned and trained about hazardous equipment

Second before beginning a new employeersquos on the job training meet with supervisors and other key employees to decide exactly what the new employee is going to be doing Write these functions down and go over them careshyfully in clear straightforward language with the employee on their first day with the company New employees need to know exactly what is going to be expected of them not only does it help to focus them it also gives them tangible goals There is no federal or state law requiring a private sector employer to translate job descriptions policies or instructions into a language other than English However if you realistically expect to have enforceable policies or job descriptions it is extremely helpful to make sure that your expectations are explained to the new worker in a language that they understand and comprehend

Third if at all possible assign an experienced employee to work with your new hire during their training period This veteran employee should explain every facet of the job and continue to monitor the individualrsquos command of the work until it is completely satisfactory Many employers feel that the best case scenario is to have the employee who is leaving the position be in charge of training the new worker (unless the employee was fired or has quit with negative feelings toward the company) If an employee is leaving on good terms and quitting with two to three weeks notice often a smooth transition can take place by having that employee work with the new hire for as much of that notice period as possible

Finally if you are hiring large number of employees at the same time you may with to consider a more formal orienshytation and training program

Reneacutee M Miller Attorney at Law

11

TBT Summer2000

LEGAL BRIEFS Summer 2000 A Unanimous Texas Supreme Court Refuses to Create a New Exception to the At-Will Employment Doctrine

Herersquos some good news for Texas employers and the at-will employment doctrine In a 9-0 opinion the Texas Supreme Court recently refused to impose a legal oblishygation on employers to act with ldquogood faith and fair dealingrdquo in their relations with employees The court held that such a duty cannot be forced on employers because there is no ldquospecial relationshiprdquo between an employer and its workers City of Midland v OrsquoBryant No 97-0954 Texas Supreme Court (April 6 2000)

While this was the first time that the court specifically addressed this issue the ruling conforms with the statersquos at-will employment doctrine Basically the at-will docshytrine means that the employment relationship is indefinite in duration employees are free to quit and employers are free to fire at any time ldquofor any reason or no reason at allrdquo as the court said The high court ruled that imposing a duty of good faith and fair dealshying on the City of Midland would permit the plaintiffs to make an ldquoend runrdquo around existing laws regulating the employment relationship The five plaintiffs had already filed and voluntarily dismissed two lawsuits brought under the Americans with Disabilities Act

Judge Priscilla R Owen reversing the state appeals courtsrsquo decision wrote ldquoa court created duty of good faith and fair dealing would completely alter the nature of the at-will employment relationship which generally can be terminated by either party for any reason or no reason at all and we accordingly decline to change the at-will nature of employment in Texasrdquo

The court stated that its ruling applies to both private and government employers ldquoinasmuch as both types of employers are subject to applicable laws regulations and contractual agreementsrdquo Additionally the court said that the holding applies whether or not the employment relationship is governed by an express agreement The court reasoned that a common-law duty of good faith and fair dealing is unnecessary when there are express contractual limits on the partiesrsquo rights

The Facts The case was brought by five police officers four of whom were disabled who were employees of the City of Midland The City informed the officers that their duties were going to be reclassified as civilian positions

and they were given three choices 1 They could stay in their jobs and be reclassified as civilians 2 They could transfer to other positions in the police department and keep their status as police officers or 3 They could transshyfer to other civilian job positions However if the officers chose to accept the civilian job positions both their benshyefits and pay would be cut The City of Midland asserted that it was facing budgetary constraints and the job reshyclassifications were simply a cost-cutting measure

The five officers sued the City of Midland alleging that it was unlawful to require them to demonstrate greater physical capabilities than they had in the past For some reason the officers voluntarily dismissed this case The City then reclassified the five officers in civilian jobs In response the officers filed a second lawsuit this time asserting discrimination retaliation and that Midland had breached its ldquoduty of good faith and fair dealingrdquo That claim was dismissed by a trial judge However the question of whether the City had a duty of good faith and fair dealing to its employees eventually made its way to the statersquos highest court

Legal Analysis The Texas Supreme Court began its unanimous opinshyion by pointing out that not every contractual relationship creates a duty of good faith and fair dealshying In an earlier lawsuit involving insurance carriers

12

TBTcontinued LEGAL BRIEFS Summer 2000 Summer2000

the court held that such a duty exists only if there is a ldquospecial relationshiprdquo between the parties In that case the court held that insurance carriers owe a duty of good faith and fair dealing to their insureds because the very nature of such a contractual agreement would allow ldquounshyscrupulous insurers to take advantage of their insuredrsquos misfortunes in bargaining for settlement or resolution of claimsrdquo

The court went on to say that ldquoif an insured suffers a loss he cannot simply contract with another insurance company to cover that loss By contrast an employee who has been demoted transferred or discharged may seek alternative employmentrdquo (emphasis added)

The court ruled that a ldquospecial relationshiprdquo does not exist in an employeremployee relationship for two reashysons 1 In Texas employment is ldquoat willrdquo and 2 Insurance contracts are ldquomuch more restrictive than employment agreementsrdquo

The court also pointed out that in Texas there is only one recognized public policy exception to the common law at-will doctrine in the state recognized more than a decade ago in Sabine Pilot Service Inc v Hauck (which held that employees may not be fired for refusing to perform illegal acts for which there are criminal penalshyties) The court reasoned that if they adopted another exception for breach of a duty of good faith and fair dealing it would ldquotend to subvert those statutory

schemes (which are adopted to govern employment reshylationships) by allowing employees to make an end-run around the procedural requirements and specific remshyedies the existing statutes establishrdquo

The Midland police officers sued for discrimination and retaliation under the Texas Labor Code However the court held that because the officers failed to exhaust their administrative remedies those claims were properly dismissed In the eyes of the court the officers were effectively asking to be excused from the administrative requirements by ldquocreating a common law cause of action for the same actions of the City on which they based their suit under the Labor Coderdquo The court reshyfused to recognize a claim for breach of the duty of good faith and fair dealing under these facts and upheld the dismissal of the officersrsquo claim

While the officers lost on most of their claims two of them will get a new hearing on their claims for reinshystatement another issue at the trial court level

The Bottom Line This was a welcome and helpful ruling for Texas emshyployers the Supreme Court wisely recognized that employees could use good faith and fair dealing claims to circumvent administrative requirements to resolve employment-related disputes To rule otherwise would have created a much broader exception to the at will employment doctrine than ever before

Reneacutee M Miller

Attorney at Law

13

TBT Summer2000

Helpful Labor and Employment Law Websites Name Website

Findlaw Labor and Employment Law wwwfindlawcom

Hieros Gamos Labor Law wwwhgorgemployhtml

Legal Engine wwwlegalenginecom

LII Labor Law Materials wwwlawcornelledu

Law News Network Employment Law Center wwwlawnewsnetworkcompracticeemploymentlaw

Online Law Library wwwfplceduolliehtm

Nolo Legal Encyclopedia wwwnolocomencyclopediaindexhtml

WWW Virtual Law Library wwwlawindianaedulawv-lib

(The above sites will help you find just about every law in the country ndash and every federal and state court decision thatrsquos available on the Internet And theyrsquore free)

Labor and Employment Forms Sites

Forms Website

FMLA Forms wwwdolgovdolesafmlahtm

Te

xa

s B

us

ine

ss

Co

nfe

ren

ce

Da

tes

- 2

00

0

IRS Forms (W04 SS-4 etc)

Government Agency Sites

Agency

Americans with Disabilities Act

US Department of Labor (DOL)

DOL Employment and Training Admininstration

Federal Mediation and Conciliation Service

DOL ndash ELAWS ndash Employment Laws Assistance For Workers and Small Business

DOL ndash Office of Federal Contract Compliance

wwwirsustreasgovprod

Website

wwwusdojgovcrtadapubsadatxt

wwwdolgov

wwwdoletagov

wwwfmcsgov

wwwdolgovelaws

wwwdolgovdolesapublicofcp_orghtm

14

TBT Summer2000

BUSINESS BRIEFS Summer 2000 Congress Repeals Social Security Earnings Limit

In a rare display of bipartisan agreement Congress recently unanimously passed legislation eliminating the Soshycial Security earnings penalty for workers between the ages of 65 and 69 President Clinton signed this measure into law on April 7 2000 but the change is retroactive to Janushyary 1 Until now these individualsrsquo Social Security benefits were cut by $1 for every $3 they earned in excess of $17000 per year

The new law does not affect younger retirees (aged 62 to 65) who will still forfeit $1 for every $2 they earn over $10080 or Americans over the age of 70 who have alshyways been allowed to work as much as they desire without losing any benefits

This new law with its unanimous and bipartisan support may be an indication of changing attitudes toward older people and work For example in 1964 43 of all Amerishycan males between the ages of 65 and 69 worked However by 1985 only 25 were working a decline of about 40 in just two decades During this same brief period the employment rate for males in the next younger age group ndash 60 to 64 ndash dropped by almost one third from 79 to 55

These trends stopped in the mid-1980rsquos The number of men in their 60rsquos who were still in the workforce began stabilizing and then increasing the same was true for older women The era of earlier and earlier retirement seems to be over

There are a number of reasons for this change The conshycept of mandatory retirement has been eliminated for the vast majority of industries and professions and the nation is enjoying record-breaking low unemployment increasshying the demand for workers of all types and skills And many Americans are living longer and enjoying better health than ever before A number of surveys suggest that most baby boomers (who will be retiring during the next several decades) hope to continue working past the age of 65 even if only part time

Get Your New Employees Up to Speed Quickly Some on the job training tips

Every employer dreams of hiring new workers who are already experienced in the type of work theyrsquoll be doing However especially in todayrsquos tight labor market that simshyply isnrsquot always possible Here are a few basics of on the job

training to help get your new workers up and running as quickly as possible

First never assume that a new employee is familiar with the procedures or equipment of the job theyrsquove been hired for regardless of what their resume says theyrsquove done for another employer in the past Procedures and equipment vary wildly from company to company sometimes even from branch to branch of the same employer Many types of equipment require safety training without which emshyployees are at risk and the company puts itself in danger of violating OSHA standards and regulations New emshyployees should always be thoroughly warned and trained about hazardous equipment

Second before beginning a new employeersquos on the job training meet with supervisors and other key employees to decide exactly what the new employee is going to be doing Write these functions down and go over them careshyfully in clear straightforward language with the employee on their first day with the company New employees need to know exactly what is going to be expected of them not only does it help to focus them it also gives them tangible goals There is no federal or state law requiring a private sector employer to translate job descriptions policies or instructions into a language other than English However if you realistically expect to have enforceable policies or job descriptions it is extremely helpful to make sure that your expectations are explained to the new worker in a language that they understand and comprehend

Third if at all possible assign an experienced employee to work with your new hire during their training period This veteran employee should explain every facet of the job and continue to monitor the individualrsquos command of the work until it is completely satisfactory Many employers feel that the best case scenario is to have the employee who is leaving the position be in charge of training the new worker (unless the employee was fired or has quit with negative feelings toward the company) If an employee is leaving on good terms and quitting with two to three weeks notice often a smooth transition can take place by having that employee work with the new hire for as much of that notice period as possible

Finally if you are hiring large number of employees at the same time you may with to consider a more formal orienshytation and training program

Reneacutee M Miller Attorney at Law

11

TBT Summer2000

LEGAL BRIEFS Summer 2000 A Unanimous Texas Supreme Court Refuses to Create a New Exception to the At-Will Employment Doctrine

Herersquos some good news for Texas employers and the at-will employment doctrine In a 9-0 opinion the Texas Supreme Court recently refused to impose a legal oblishygation on employers to act with ldquogood faith and fair dealingrdquo in their relations with employees The court held that such a duty cannot be forced on employers because there is no ldquospecial relationshiprdquo between an employer and its workers City of Midland v OrsquoBryant No 97-0954 Texas Supreme Court (April 6 2000)

While this was the first time that the court specifically addressed this issue the ruling conforms with the statersquos at-will employment doctrine Basically the at-will docshytrine means that the employment relationship is indefinite in duration employees are free to quit and employers are free to fire at any time ldquofor any reason or no reason at allrdquo as the court said The high court ruled that imposing a duty of good faith and fair dealshying on the City of Midland would permit the plaintiffs to make an ldquoend runrdquo around existing laws regulating the employment relationship The five plaintiffs had already filed and voluntarily dismissed two lawsuits brought under the Americans with Disabilities Act

Judge Priscilla R Owen reversing the state appeals courtsrsquo decision wrote ldquoa court created duty of good faith and fair dealing would completely alter the nature of the at-will employment relationship which generally can be terminated by either party for any reason or no reason at all and we accordingly decline to change the at-will nature of employment in Texasrdquo

The court stated that its ruling applies to both private and government employers ldquoinasmuch as both types of employers are subject to applicable laws regulations and contractual agreementsrdquo Additionally the court said that the holding applies whether or not the employment relationship is governed by an express agreement The court reasoned that a common-law duty of good faith and fair dealing is unnecessary when there are express contractual limits on the partiesrsquo rights

The Facts The case was brought by five police officers four of whom were disabled who were employees of the City of Midland The City informed the officers that their duties were going to be reclassified as civilian positions

and they were given three choices 1 They could stay in their jobs and be reclassified as civilians 2 They could transfer to other positions in the police department and keep their status as police officers or 3 They could transshyfer to other civilian job positions However if the officers chose to accept the civilian job positions both their benshyefits and pay would be cut The City of Midland asserted that it was facing budgetary constraints and the job reshyclassifications were simply a cost-cutting measure

The five officers sued the City of Midland alleging that it was unlawful to require them to demonstrate greater physical capabilities than they had in the past For some reason the officers voluntarily dismissed this case The City then reclassified the five officers in civilian jobs In response the officers filed a second lawsuit this time asserting discrimination retaliation and that Midland had breached its ldquoduty of good faith and fair dealingrdquo That claim was dismissed by a trial judge However the question of whether the City had a duty of good faith and fair dealing to its employees eventually made its way to the statersquos highest court

Legal Analysis The Texas Supreme Court began its unanimous opinshyion by pointing out that not every contractual relationship creates a duty of good faith and fair dealshying In an earlier lawsuit involving insurance carriers

12

TBTcontinued LEGAL BRIEFS Summer 2000 Summer2000

the court held that such a duty exists only if there is a ldquospecial relationshiprdquo between the parties In that case the court held that insurance carriers owe a duty of good faith and fair dealing to their insureds because the very nature of such a contractual agreement would allow ldquounshyscrupulous insurers to take advantage of their insuredrsquos misfortunes in bargaining for settlement or resolution of claimsrdquo

The court went on to say that ldquoif an insured suffers a loss he cannot simply contract with another insurance company to cover that loss By contrast an employee who has been demoted transferred or discharged may seek alternative employmentrdquo (emphasis added)

The court ruled that a ldquospecial relationshiprdquo does not exist in an employeremployee relationship for two reashysons 1 In Texas employment is ldquoat willrdquo and 2 Insurance contracts are ldquomuch more restrictive than employment agreementsrdquo

The court also pointed out that in Texas there is only one recognized public policy exception to the common law at-will doctrine in the state recognized more than a decade ago in Sabine Pilot Service Inc v Hauck (which held that employees may not be fired for refusing to perform illegal acts for which there are criminal penalshyties) The court reasoned that if they adopted another exception for breach of a duty of good faith and fair dealing it would ldquotend to subvert those statutory

schemes (which are adopted to govern employment reshylationships) by allowing employees to make an end-run around the procedural requirements and specific remshyedies the existing statutes establishrdquo

The Midland police officers sued for discrimination and retaliation under the Texas Labor Code However the court held that because the officers failed to exhaust their administrative remedies those claims were properly dismissed In the eyes of the court the officers were effectively asking to be excused from the administrative requirements by ldquocreating a common law cause of action for the same actions of the City on which they based their suit under the Labor Coderdquo The court reshyfused to recognize a claim for breach of the duty of good faith and fair dealing under these facts and upheld the dismissal of the officersrsquo claim

While the officers lost on most of their claims two of them will get a new hearing on their claims for reinshystatement another issue at the trial court level

The Bottom Line This was a welcome and helpful ruling for Texas emshyployers the Supreme Court wisely recognized that employees could use good faith and fair dealing claims to circumvent administrative requirements to resolve employment-related disputes To rule otherwise would have created a much broader exception to the at will employment doctrine than ever before

Reneacutee M Miller

Attorney at Law

13

TBT Summer2000

Helpful Labor and Employment Law Websites Name Website

Findlaw Labor and Employment Law wwwfindlawcom

Hieros Gamos Labor Law wwwhgorgemployhtml

Legal Engine wwwlegalenginecom

LII Labor Law Materials wwwlawcornelledu

Law News Network Employment Law Center wwwlawnewsnetworkcompracticeemploymentlaw

Online Law Library wwwfplceduolliehtm

Nolo Legal Encyclopedia wwwnolocomencyclopediaindexhtml

WWW Virtual Law Library wwwlawindianaedulawv-lib

(The above sites will help you find just about every law in the country ndash and every federal and state court decision thatrsquos available on the Internet And theyrsquore free)

Labor and Employment Forms Sites

Forms Website

FMLA Forms wwwdolgovdolesafmlahtm

Te

xa

s B

us

ine

ss

Co

nfe

ren

ce

Da

tes

- 2

00

0

IRS Forms (W04 SS-4 etc)

Government Agency Sites

Agency

Americans with Disabilities Act

US Department of Labor (DOL)

DOL Employment and Training Admininstration

Federal Mediation and Conciliation Service

DOL ndash ELAWS ndash Employment Laws Assistance For Workers and Small Business

DOL ndash Office of Federal Contract Compliance

wwwirsustreasgovprod

Website

wwwusdojgovcrtadapubsadatxt

wwwdolgov

wwwdoletagov

wwwfmcsgov

wwwdolgovelaws

wwwdolgovdolesapublicofcp_orghtm

14

TBT Summer2000

LEGAL BRIEFS Summer 2000 A Unanimous Texas Supreme Court Refuses to Create a New Exception to the At-Will Employment Doctrine

Herersquos some good news for Texas employers and the at-will employment doctrine In a 9-0 opinion the Texas Supreme Court recently refused to impose a legal oblishygation on employers to act with ldquogood faith and fair dealingrdquo in their relations with employees The court held that such a duty cannot be forced on employers because there is no ldquospecial relationshiprdquo between an employer and its workers City of Midland v OrsquoBryant No 97-0954 Texas Supreme Court (April 6 2000)

While this was the first time that the court specifically addressed this issue the ruling conforms with the statersquos at-will employment doctrine Basically the at-will docshytrine means that the employment relationship is indefinite in duration employees are free to quit and employers are free to fire at any time ldquofor any reason or no reason at allrdquo as the court said The high court ruled that imposing a duty of good faith and fair dealshying on the City of Midland would permit the plaintiffs to make an ldquoend runrdquo around existing laws regulating the employment relationship The five plaintiffs had already filed and voluntarily dismissed two lawsuits brought under the Americans with Disabilities Act

Judge Priscilla R Owen reversing the state appeals courtsrsquo decision wrote ldquoa court created duty of good faith and fair dealing would completely alter the nature of the at-will employment relationship which generally can be terminated by either party for any reason or no reason at all and we accordingly decline to change the at-will nature of employment in Texasrdquo

The court stated that its ruling applies to both private and government employers ldquoinasmuch as both types of employers are subject to applicable laws regulations and contractual agreementsrdquo Additionally the court said that the holding applies whether or not the employment relationship is governed by an express agreement The court reasoned that a common-law duty of good faith and fair dealing is unnecessary when there are express contractual limits on the partiesrsquo rights

The Facts The case was brought by five police officers four of whom were disabled who were employees of the City of Midland The City informed the officers that their duties were going to be reclassified as civilian positions

and they were given three choices 1 They could stay in their jobs and be reclassified as civilians 2 They could transfer to other positions in the police department and keep their status as police officers or 3 They could transshyfer to other civilian job positions However if the officers chose to accept the civilian job positions both their benshyefits and pay would be cut The City of Midland asserted that it was facing budgetary constraints and the job reshyclassifications were simply a cost-cutting measure

The five officers sued the City of Midland alleging that it was unlawful to require them to demonstrate greater physical capabilities than they had in the past For some reason the officers voluntarily dismissed this case The City then reclassified the five officers in civilian jobs In response the officers filed a second lawsuit this time asserting discrimination retaliation and that Midland had breached its ldquoduty of good faith and fair dealingrdquo That claim was dismissed by a trial judge However the question of whether the City had a duty of good faith and fair dealing to its employees eventually made its way to the statersquos highest court

Legal Analysis The Texas Supreme Court began its unanimous opinshyion by pointing out that not every contractual relationship creates a duty of good faith and fair dealshying In an earlier lawsuit involving insurance carriers

12

TBTcontinued LEGAL BRIEFS Summer 2000 Summer2000

the court held that such a duty exists only if there is a ldquospecial relationshiprdquo between the parties In that case the court held that insurance carriers owe a duty of good faith and fair dealing to their insureds because the very nature of such a contractual agreement would allow ldquounshyscrupulous insurers to take advantage of their insuredrsquos misfortunes in bargaining for settlement or resolution of claimsrdquo

The court went on to say that ldquoif an insured suffers a loss he cannot simply contract with another insurance company to cover that loss By contrast an employee who has been demoted transferred or discharged may seek alternative employmentrdquo (emphasis added)

The court ruled that a ldquospecial relationshiprdquo does not exist in an employeremployee relationship for two reashysons 1 In Texas employment is ldquoat willrdquo and 2 Insurance contracts are ldquomuch more restrictive than employment agreementsrdquo

The court also pointed out that in Texas there is only one recognized public policy exception to the common law at-will doctrine in the state recognized more than a decade ago in Sabine Pilot Service Inc v Hauck (which held that employees may not be fired for refusing to perform illegal acts for which there are criminal penalshyties) The court reasoned that if they adopted another exception for breach of a duty of good faith and fair dealing it would ldquotend to subvert those statutory

schemes (which are adopted to govern employment reshylationships) by allowing employees to make an end-run around the procedural requirements and specific remshyedies the existing statutes establishrdquo

The Midland police officers sued for discrimination and retaliation under the Texas Labor Code However the court held that because the officers failed to exhaust their administrative remedies those claims were properly dismissed In the eyes of the court the officers were effectively asking to be excused from the administrative requirements by ldquocreating a common law cause of action for the same actions of the City on which they based their suit under the Labor Coderdquo The court reshyfused to recognize a claim for breach of the duty of good faith and fair dealing under these facts and upheld the dismissal of the officersrsquo claim

While the officers lost on most of their claims two of them will get a new hearing on their claims for reinshystatement another issue at the trial court level

The Bottom Line This was a welcome and helpful ruling for Texas emshyployers the Supreme Court wisely recognized that employees could use good faith and fair dealing claims to circumvent administrative requirements to resolve employment-related disputes To rule otherwise would have created a much broader exception to the at will employment doctrine than ever before

Reneacutee M Miller

Attorney at Law

13

TBT Summer2000

Helpful Labor and Employment Law Websites Name Website

Findlaw Labor and Employment Law wwwfindlawcom

Hieros Gamos Labor Law wwwhgorgemployhtml

Legal Engine wwwlegalenginecom

LII Labor Law Materials wwwlawcornelledu

Law News Network Employment Law Center wwwlawnewsnetworkcompracticeemploymentlaw

Online Law Library wwwfplceduolliehtm

Nolo Legal Encyclopedia wwwnolocomencyclopediaindexhtml

WWW Virtual Law Library wwwlawindianaedulawv-lib

(The above sites will help you find just about every law in the country ndash and every federal and state court decision thatrsquos available on the Internet And theyrsquore free)

Labor and Employment Forms Sites

Forms Website

FMLA Forms wwwdolgovdolesafmlahtm

Te

xa

s B

us

ine

ss

Co

nfe

ren

ce

Da

tes

- 2

00

0

IRS Forms (W04 SS-4 etc)

Government Agency Sites

Agency

Americans with Disabilities Act

US Department of Labor (DOL)

DOL Employment and Training Admininstration

Federal Mediation and Conciliation Service

DOL ndash ELAWS ndash Employment Laws Assistance For Workers and Small Business

DOL ndash Office of Federal Contract Compliance

wwwirsustreasgovprod

Website

wwwusdojgovcrtadapubsadatxt

wwwdolgov

wwwdoletagov

wwwfmcsgov

wwwdolgovelaws

wwwdolgovdolesapublicofcp_orghtm

14

TBTcontinued LEGAL BRIEFS Summer 2000 Summer2000

the court held that such a duty exists only if there is a ldquospecial relationshiprdquo between the parties In that case the court held that insurance carriers owe a duty of good faith and fair dealing to their insureds because the very nature of such a contractual agreement would allow ldquounshyscrupulous insurers to take advantage of their insuredrsquos misfortunes in bargaining for settlement or resolution of claimsrdquo

The court went on to say that ldquoif an insured suffers a loss he cannot simply contract with another insurance company to cover that loss By contrast an employee who has been demoted transferred or discharged may seek alternative employmentrdquo (emphasis added)

The court ruled that a ldquospecial relationshiprdquo does not exist in an employeremployee relationship for two reashysons 1 In Texas employment is ldquoat willrdquo and 2 Insurance contracts are ldquomuch more restrictive than employment agreementsrdquo

The court also pointed out that in Texas there is only one recognized public policy exception to the common law at-will doctrine in the state recognized more than a decade ago in Sabine Pilot Service Inc v Hauck (which held that employees may not be fired for refusing to perform illegal acts for which there are criminal penalshyties) The court reasoned that if they adopted another exception for breach of a duty of good faith and fair dealing it would ldquotend to subvert those statutory

schemes (which are adopted to govern employment reshylationships) by allowing employees to make an end-run around the procedural requirements and specific remshyedies the existing statutes establishrdquo

The Midland police officers sued for discrimination and retaliation under the Texas Labor Code However the court held that because the officers failed to exhaust their administrative remedies those claims were properly dismissed In the eyes of the court the officers were effectively asking to be excused from the administrative requirements by ldquocreating a common law cause of action for the same actions of the City on which they based their suit under the Labor Coderdquo The court reshyfused to recognize a claim for breach of the duty of good faith and fair dealing under these facts and upheld the dismissal of the officersrsquo claim

While the officers lost on most of their claims two of them will get a new hearing on their claims for reinshystatement another issue at the trial court level

The Bottom Line This was a welcome and helpful ruling for Texas emshyployers the Supreme Court wisely recognized that employees could use good faith and fair dealing claims to circumvent administrative requirements to resolve employment-related disputes To rule otherwise would have created a much broader exception to the at will employment doctrine than ever before

Reneacutee M Miller

Attorney at Law

13

TBT Summer2000

Helpful Labor and Employment Law Websites Name Website

Findlaw Labor and Employment Law wwwfindlawcom

Hieros Gamos Labor Law wwwhgorgemployhtml

Legal Engine wwwlegalenginecom

LII Labor Law Materials wwwlawcornelledu

Law News Network Employment Law Center wwwlawnewsnetworkcompracticeemploymentlaw

Online Law Library wwwfplceduolliehtm

Nolo Legal Encyclopedia wwwnolocomencyclopediaindexhtml

WWW Virtual Law Library wwwlawindianaedulawv-lib

(The above sites will help you find just about every law in the country ndash and every federal and state court decision thatrsquos available on the Internet And theyrsquore free)

Labor and Employment Forms Sites

Forms Website

FMLA Forms wwwdolgovdolesafmlahtm

Te

xa

s B

us

ine

ss

Co

nfe

ren

ce

Da

tes

- 2

00

0

IRS Forms (W04 SS-4 etc)

Government Agency Sites

Agency

Americans with Disabilities Act

US Department of Labor (DOL)

DOL Employment and Training Admininstration

Federal Mediation and Conciliation Service

DOL ndash ELAWS ndash Employment Laws Assistance For Workers and Small Business

DOL ndash Office of Federal Contract Compliance

wwwirsustreasgovprod

Website

wwwusdojgovcrtadapubsadatxt

wwwdolgov

wwwdoletagov

wwwfmcsgov

wwwdolgovelaws

wwwdolgovdolesapublicofcp_orghtm

14

TBT Summer2000

Helpful Labor and Employment Law Websites Name Website

Findlaw Labor and Employment Law wwwfindlawcom

Hieros Gamos Labor Law wwwhgorgemployhtml

Legal Engine wwwlegalenginecom

LII Labor Law Materials wwwlawcornelledu

Law News Network Employment Law Center wwwlawnewsnetworkcompracticeemploymentlaw

Online Law Library wwwfplceduolliehtm

Nolo Legal Encyclopedia wwwnolocomencyclopediaindexhtml

WWW Virtual Law Library wwwlawindianaedulawv-lib

(The above sites will help you find just about every law in the country ndash and every federal and state court decision thatrsquos available on the Internet And theyrsquore free)

Labor and Employment Forms Sites

Forms Website

FMLA Forms wwwdolgovdolesafmlahtm

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IRS Forms (W04 SS-4 etc)

Government Agency Sites

Agency

Americans with Disabilities Act

US Department of Labor (DOL)

DOL Employment and Training Admininstration

Federal Mediation and Conciliation Service

DOL ndash ELAWS ndash Employment Laws Assistance For Workers and Small Business

DOL ndash Office of Federal Contract Compliance

wwwirsustreasgovprod

Website

wwwusdojgovcrtadapubsadatxt

wwwdolgov

wwwdoletagov

wwwfmcsgov

wwwdolgovelaws

wwwdolgovdolesapublicofcp_orghtm

14

DOL ndash Wage and Hour Division wwwdolgovdolesapublicwhd_orghtm

Equal Employment Opportunity Commission (EEOC) wwweeocgov

Immigration and Naturalization Service wwwinsusdojgov

Occupational and Safety Health Administration wwwoshagov

National Labor Relations Board (NLRB) wwwnlrbgov

DOL ndash Pension and Welfare Benefits Administration wwwdolgovdolpwba

DOL ndash Veterans Employment and Training Service wwwdolgovdolvets

Texas Workforce Commission wwwtwcstatetxus

Texas Workersrsquo Compensation Commission wwwtwccstatetxus

Texas Comptroller of Public Accounts wwwcpastatetxus

Other Useful Labor and Employment Sites

Name Website

ADA Document Center janwebicdiwvuedukinder

ADA Technical Assistance Program wwwadataorg

ERISA Information from BenefitsLinkcom wwwbenefitslinkcomerisaindexhtml

HR Internet Guide wwwhr-guidecom

Layoff Updates wwwhrlivecom

TBT Summer2000

continued Helpful Labor and Employment Law Websites

15

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TBT Summer2000

IN THIS ISSUE Pain in the Back Cover

Observations from the Dais 4

Summer Hiring 5

Welfare Reform 6

Ideas for Legislative Change 2001 7

Your Technology Policies 8

Business Briefs 11

Legal Briefs 12

Helpful Labor and Employment Law Websites 14

TexasBusinessTodayTexasBusiness Today is a quarterly publication devoted to a variety of topics of interest to Texas employers The views and analyses presented herein do not necessarily represent the policies or the endorsement of the Texas Workforce Commisshysion Articles containing legal analyses or opinions are intended only as a discussion and overview of the topics presented Such articles are not intended to be a comprehenshysive legal analysis of every aspect of the topics discussed Due to the general nature of the discussions provided this inforshymation may not apply in each and every fact situation and should not be acted upon without specific legal advice based on the facts in a particular case

Texas BusinessToday is provided to employers free of charge If you wish to subscribe to this newsletter or to discontinue your subscription or if you are receiving more than one copy or wish to receive additional copies please write to

Ron Lehman Commissioner Representing Employers

101 East 15th Street Room 624 Austin Texas 78778-0001

Material in Texas Business Today is not copyrighted and may be reproduced

Auxiliary aids and services will be made available upon request to individuals with disabilities if requested at least two weeks in advance

Telephone 1-800-832-9394 (512) 463-2826 FAX - (512) 463-3196 Web Site wwwtwcstatetxus

Printed in Texas on recycled paper

16

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TEXAS W

ORKFORCE COMMISSION

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mdashmdash

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OFFICIAL

BUSINESS

PENALTY

FOR

PRIVATE

USE

$3

00

AD

DR

ES

S S

ER

VIC

E R

EQ

UE

ST

ED

TBT Summer2000

IN THIS ISSUE Pain in the Back Cover

Observations from the Dais 4

Summer Hiring 5

Welfare Reform 6

Ideas for Legislative Change 2001 7

Your Technology Policies 8

Business Briefs 11

Legal Briefs 12

Helpful Labor and Employment Law Websites 14

TexasBusinessTodayTexasBusiness Today is a quarterly publication devoted to a variety of topics of interest to Texas employers The views and analyses presented herein do not necessarily represent the policies or the endorsement of the Texas Workforce Commisshysion Articles containing legal analyses or opinions are intended only as a discussion and overview of the topics presented Such articles are not intended to be a comprehenshysive legal analysis of every aspect of the topics discussed Due to the general nature of the discussions provided this inforshymation may not apply in each and every fact situation and should not be acted upon without specific legal advice based on the facts in a particular case

Texas BusinessToday is provided to employers free of charge If you wish to subscribe to this newsletter or to discontinue your subscription or if you are receiving more than one copy or wish to receive additional copies please write to

Ron Lehman Commissioner Representing Employers

101 East 15th Street Room 624 Austin Texas 78778-0001

Material in Texas Business Today is not copyrighted and may be reproduced

Auxiliary aids and services will be made available upon request to individuals with disabilities if requested at least two weeks in advance

Telephone 1-800-832-9394 (512) 463-2826 FAX - (512) 463-3196 Web Site wwwtwcstatetxus

Printed in Texas on recycled paper